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ELCAllowedKakamega Environment and Land Court (as per record)· [2022] KEELC 1892 (KLR)

Meshak Shamala Masinde v Boniface Masinde Sagula & 2 others [2022] KEELC 1892 (KLR)

Environment and Land Court
1 February 2022
DOD. O. Ohungo
1,079 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Kakamega corrected a wrong parcel number in a mediation settlement, confirming courts can fix obvious clerical errors through review.

What this practically means

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Executive summary

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The suit was referred to court-annexed mediation at the parties' request and successfully concluded in a mediation settlement agreement dated 19th December 2019, which the court endorsed and entered as judgment. The terms included inviting a government land surveyor to confirm a boundary dispute, Meshack Shamala Masinde bearing survey costs, and Masinde giving Bonface Masinde Sagula 1½ acres instead of 2 acres to cover an unpaid purchase price. The first defendant (applicant) then filed a Notice of Motion dated 27th October 2021 seeking review of the judgment to correct the parcel number in clause 1, contending the land in question is L.R No. South Kabras/Shamberere/1942 rather than the number recorded. Although served, the plaintiff did not respond. The court, per D. O. Ohungo J, set out the review framework under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and reiterated that an error apparent on the face of the record must be self-evident and not require long-drawn reasoning, citing Nyamogo & Nyamogo v Kogo and Mary Wambui Njuguna v William Ole Nabala. On perusing the plaint, the court found the suit property stated as L.R No. South Kabras/Shamberere/1942, found merit in the application, reviewed the judgment, and substituted corrected final orders, with each party bearing their own costs of the motion and the suit.

Key legal issues

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Whether there is an error apparent on the face of the record warranting review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

Yes - the plaint identifies the suit property as L.R No. South Kabras/Shamberere/1942, while the settlement agreement and ensuing order referred to South Kabras/Shamberer/494, so the error is apparent on the face of the record

Reasoning

The court set out the statutory review framework in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It noted that an error apparent on the face of the record must be self-evident without long-drawn reasoning. On perusing the plaint, the suit property was stated as L.R No. South Kabras/Shamberere/1942, which confirmed the clerical discrepancy in the recorded settlement. The application was therefore merited.

p. 2

Legal principles established

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  • To qualify for review under the limb of error apparent on the face of the record, the error must be self-evident and not require a long-drawn process of reasoning

Court orders

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  1. 1.Judgment given pursuant to the mediation settlement agreement reviewed so that clause 1 now refers to L.R No. South Kabras/Shamberere/1942
  2. 2.Final orders to read as the corrected terms: government land surveyor to be invited to confirm the boundary between Meshack Shamala Masinde (L.R No. South Kabras/Shamberere/1942) and Jotham Andika Anunda (L.R No. South Kabras/Shamberere/694); Masinde to bear costs of survey; 1½ acres instead of 2 acres to Bonface Masinde Sagula to cover purchase price; dispute deemed fully settled with no appeal against the settlement
  3. 3.Each party to bear own costs of the Notice of Motion dated 27th October 2021 and own costs of the suit

Authorities

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Legislation

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

Cases cited (2)

  • Nyamogo & Nyamogo vs. Kogo
    [2001] EA 174
  • Mary Wambui Njuguna vs. William Ole Nabala & 9 others
    [2018] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review)

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, "Meshak Shamala Masinde v Boniface Masinde Sagula & 2 others [2022] KEELC 1892 (KLR)", Case Analysis (2022). Kakamega Environment and Land Court (as per record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1892/eng@2022-02-01

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