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ELCPartially AllowedNotice of Motion dated 12th October, 2021 (succeeding plaint dated 22nd April, 2015)· [2021] KEELC 949 (KLR)

James Muriithi Kareu v Ndege Ndebu [2021] KEELC 949 (KLR)

Environment and Land Court
12 November 2021
ECE.C. Cherono
1,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court corrected a clerical error in its own judgment, confirming that obvious mistakes on a decree can be fixed through review without a full retrial.

What this practically means

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Executive summary

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The substituted applicant, son and legal representative of the original plaintiff Kareu Ndebu (deceased), applied by Notice of Motion dated 12th October, 2021 under Order 45 Rule 1 of the Civil Procedure Rules seeking review of the judgment and decree of 29th May, 2020, which had awarded the plaintiff half share of land parcel Baragwe/Raimu/237 'also described as Baragwe/Raimu/223'. The applicant explained that when he presented the decree for registration on 5th October, 2021, the Land Registrar directed that it be amended to identify the exact parcel being shared. The claim, as pleaded in the plaint dated 22nd April, 2015, concerned only Baragwe/Raimu/237, registered in the defendant's name. Relying on Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the court adopted the test that an error apparent on the face of the record must be self-evident without detailed examination or reasoning. Perusing the plaint, E.C. Cherono (ELC Judge) confirmed the claim was in respect of Baragwe/Raimu/237 only and found that the reference to the alternative parcel was an error apparent on the face of the record. The court allowed the review, setting out corrected orders: a declaration that the defendant holds Baragwe/Raimu/237 (2.34 Ha.) in trust for himself and the plaintiff, subdivision of that parcel into two equal portions by the Land Registrar Kirinyaga County, and rectification of the register accordingly. Each party was to bear its own costs. Delivered at Kerugoya on 12th November, 2021.

Key legal issues

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Whether the discrepancy between the land parcel claimed (Baragwe/Raimu/237) and the parcel described in the judgment and decree (Baragwe/Raimu/237 also described as Baragwe/Raimu/223) constitutes an error apparent on the face of the record

Holding

Yes - the discrepancy was a self-evident mistake falling within Order 45 Rule 1, warranting review of the judgment of 29th May, 2020

Reasoning

The court perused the plaint dated 22nd April, 2015 and confirmed the plaintiff had sought only Baragwe/Raimu/237. The judgment's reference to that parcel 'also described as Baragwe/Raimu/223' did not reflect the pleadings, and the Land Registrar had refused to register the decree without clarification. Relying on the Ex parte Apollo Mboya definition, the court held the error was self-evident and required no elaborate reasoning, and granted review without sitting in appeal over itself.

p. 2

Legal principles established

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  • An error apparent on the face of the record is one evident per se and requiring no detailed examination or reasoning; a mere erroneous view of law or fact is not reviewable

Court orders

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  1. 1.Orders (1) and (2) issued in the Judgment delivered on 29th May, 2020 be reviewed to read: a declaration that the defendant holds land parcel No. Baragwe/Raimu/237 measuring 2.34 Ha. in trust for himself and the plaintiff
  2. 2.The Land Registrar Kirinyaga County to conduct subdivision of the said land parcel Baragwe/Raimu/237 into two equal portions and the Land Registrar to rectify the Register accordingly
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSection 80

Cases cited (1)

  • Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court which passed the decree), read with Section 80 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Muriithi Kareu v Ndege Ndebu [2021] KEELC 949 (KLR)", Case Analysis (2021). Notice of Motion dated 12th October, 2021 (succeeding plaint dated 22nd April, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/949/eng@2021-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.