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ELCDismissedNot stated in the judgment· [2022] KEELC 1284 (KLR)

Siprosa Achieng Ondari v Josiah Obuogi Okumu [2022] KEELC 1284 (KLR)

Not expressly named in the judgment (first-instance suit court presided over by a Judge)
24 February 2022
AKA. Y. Koross
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to rewrite a consent order, confirming the slip rule cannot fix disputes over what parties agreed to.

What this practically means

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Executive summary

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The defendant filed a Notice of Motion dated 11/03/2020 under Sections 1A, 1B, 3, 3A and 100 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules seeking rectification and amendment of a consent order dated 5/03/2020 by deleting paragraphs 2 and 3 thereof. He argued that the order did not reflect the status quo of the suit land, that his brother Peter Ouma Okumu misled the court, and that the plaintiff and her brother-in-law had breached peace using the consent order. In a further affidavit he alleged he never instructed his brother or his advocate to record the consent and that the parties' advocates had colluded. The plaintiff opposed, contending the motion was misconceived and defective, that the consent was recorded in the presence of the defendant's then advocate Mr. Odhiambo B.F., that the motion did not satisfy the slip rule under Section 99, and that the consent was not procured by coercion, fraud or misrepresentation. The court framed a single issue: whether the consent order should be rectified by deleting orders 2 and 3. Relying on the slip rule (Section 99) and the Supreme Court's exposition in Fredrick Otieno Outa, the court held that the consent was duly entered by the advocates in open court with no evidence that the brother attended court, and that rectification would substantially alter the substance of the order and amount to setting it aside or reviewing it. The motion was dismissed with costs to the plaintiff, and directions on Order 11 compliance were given.

Key legal issues

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01

Whether the consent order of 5/03/2020 could be rectified under Sections 99 and 100 of the Civil Procedure Act (the slip rule) by deleting paragraphs 2 and 3

Holding

The application was not merited; the court lacked basis to rectify because the order was duly entered by consent of the parties' advocates in open court, and rectification would alter the substance of the order, tantamount to setting it aside or reviewing it.

Reasoning

The court explained that Section 99 (the slip rule) exists to correct clerical or arithmetical mistakes and accidental slips that do not reflect the actual decision, not to change substance. The record showed no evidence that the defendant's brother attended court on 10/2/2020; the defendant's advocate was present and executed the consent upon being satisfied of his client's instructions. Alleged collusion and lack of instruction were not established. Rectifying the order would modify the parties' intention and amount to setting aside or review, which the motion did not seek on proper grounds.

p. 2

Legal principles established

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  • The slip rule permits correction only of clerical or arithmetical mistakes or accidental slips, and cannot be used to alter the substance of a consent order or the intention of the parties.

Court orders

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  1. 1.The Notice of Motion dated 11/03/2020 is hereby dismissed.
  2. 2.Costs shall be borne by the defendant.
  3. 3.Parties to comply with Order 11 of the Civil Procedure Rules within 14 days from today.
  4. 4.The case to be mentioned for directions before the Deputy Registrar on 23/03/2022.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 100
  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 11
  • Supreme Court ActSection 21(4)

Cases cited (2)

  • JOSEPH FRANCIS MAKOKHA v RAPHAEL SIMIYU WEKESA & another
    [2009] eKLR
  • Fredrick Otieno Outa v Jared Odoyo Okello & 3 others
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 99 and 100 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Siprosa Achieng Ondari v Josiah Obuogi Okumu [2022] KEELC 1284 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1284/eng@2022-02-24

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