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ELCPartially AllowedNot stated in the excerpt· [2021] KEELC 4580 (KLR)

Peter Maina Munina v Anne Wanjiru Wachira (Suing as Attorney of Samuel Nduati Njuguna) [2021] KEELC 4580 (KLR)

High Court (Appellate jurisdiction over subordinate court appeal)
28 January 2021
JKJ. G. Kemei
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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On 10 December 2020 the court, sitting on appeal from the lower court, ordered the Appellant to refund Kshs 1,330,000/= with 20% p.a. interest and awarded costs of the appeal to the Respondent. The Respondent (as applicant) then filed a Notice of Motion dated 18 December 2020 under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act seeking review of the judgment so that the refund figure be amended to Kshs 1,350,000/=. The application was uncontested, no reply having been filed despite service. The court framed two issues: whether it retained jurisdiction after delivering judgment, and whether there was an error or mistake in the judgment. Relying on the Kenya Seed case, the court held that although a court becomes functus officio upon delivery of judgment, the slip rule and Sections 80 and 99 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules permit correction of clerical or arithmetical errors and errors apparent on the face of the record. Quoting National Bank of Kenya v Ndungu Njau, the court noted such an error must be self-evident. Paragraph 40 of the original judgment had recorded an admission of receipt of Kshs 1,350,000/=, so the figure of Kshs 1,330,000/= in order 44(a) was an accidental slip apparent on the record. The application was allowed; the judgment was reviewed so that the Appellant shall refund Kshs 1,350,000/= with 20% p.a. interest from filing of suit until payment in full, with costs of the appeal to the Respondent. The court made no orders as to costs of the review application. Judgment delivered online on 28 January 2021 by J. G. Kemei, Judge.

Key legal issues

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01

Whether the court has jurisdiction to review its own judgment after delivery

Holding

Yes. While the functus officio rule applies on delivery of judgment, the court retains jurisdiction under Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules and the slip rule (Section 99) to correct errors apparent on the face of the record.

Reasoning

The court applied the exceptions to functus officio set out in the Kenya Seed case, noting the slip rule is a codification of the common law doctrine permitting reopening only for limited purposes such as clerical errors, arithmetical mistakes and wrong figures. Section 80 and Order 45 permit review on discovery of new matter, error apparent on the face of the record, or other sufficient reason.

p. 2
02

Whether the discrepancy between Kshs 1,350,000/= found in paragraph 40 and Kshs 1,330,000/= awarded in order 44(a) is an error apparent on the face of the record

Holding

Yes. The judgment at paragraph 40 confirmed the award of Kshs 1,350,000/=, so the figure of Kshs 1,330,000/= in order 44(a) was an accidental slip on the face of the record.

Reasoning

Paragraph 40 of the original judgment recorded that the Appellant admitted receipt of Kshs 1,350,000/= and was estopped from denying it, yet the decretal order stated Kshs 1,330,000/=. The court held this discrepancy was self-evident, required no elaborate argument, and fell squarely within Section 99 and Order 45, justifying amendment of the figure.

p. 3

Legal principles established

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  • Upon delivery of judgment a court becomes functus officio, subject to limited exceptions including correction of clerical or arithmetical errors and errors apparent on the face of the record under Section 80/Order 45 and Section 99 of the Civil Procedure Act
  • An error apparent on the face of the record must be self-evident and not require elaborate argument to establish
  • Section 99 confers power on a court to correct clerical or arithmetical mistakes in judgments, decrees or orders of its own motion or on application

Court orders

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  1. 1.The judgment of 10/12/2020 reviewed; the refund figure in order 44(a) amended from Kshs 1,330,000/= to Kshs 1,350,000/=
  2. 2.The Appellant shall refund the sum of Kshs 1,350,000/= together with 20% p.a. interest to the Respondent from the time of filing suit until payment in full
  3. 3.The costs of the Appeal shall be payable to the Respondent
  4. 4.No orders as to costs of the review application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 45

Cases cited (5)

  • Republic –Vs- Attorney General & 15 Others, Ex-Parte Kenya Seed Company Limited & 5 others
    [2010] eKLR
  • National Bank of Kenya Ltd -Vs- Ndungu Njau
    [1997] Eklr
  • Republic -Vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Nuh Nassir Abdi -vs- Ali Wario & 2 Others
    (2013) E KLR EP NO. 6 of 2013
  • Sarden Mohamed -Vs- Charan Singh Nard Singh and Another
    (1959) EA 793
On appeal from
Lower court (subordinate court)
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Section 99 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, Sections 1A, 1B and 3A 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, "Peter Maina Munina v Anne Wanjiru Wachira (Suing as Attorney of Samuel Nduati Njuguna) [2021] KEELC 4580 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4580/eng@2021-01-28

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