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ELCPartially AllowedCivil Case 445 of 2014· [2022] KEELC 14745 (KLR)

Five Star Agencies Ltd v National Land Commission

Environment and Land Court at Nairobi
10 November 2022
OAO A Angote
2,441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court corrected its own 2014 judgment so interest on a Kshs 413 million land compensation award now runs until full payment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (O A Angote, J) determined an unopposed Notice of Motion dated August 2, 2021 by Five Star Agencies Limited seeking correction, under Section 99 of the Civil Procedure Act (the 'slip rule'), of Order 4 of the judgment of November 24, 2014 and the ensuing decree. The 2014 judgment had set aside the National Land Commission's compensation award of Kshs 87,804,225 for the compulsory acquisition of LR 209/9727 (IR 37790) and enhanced it to approximately Kshs 413,192,500, with interest at court rates 'from the date of this judgment until date of possession'. The appellant argued that since the Kenya National Highways Authority had already taken possession before judgment, Section 117(1) of the Land Act, 2012 required interest from the time of taking possession until payment, and the order as drafted denied it accrued interest and was unenforceable. The court framed a sole issue: whether the judgment could be amended under the slip rule. Relying on Leonard Mambo Kuria v Ann Wanjiru Mambo and Republic v Attorney General ex-parte Kenya Seed Company, it held that Section 99 permits correction to give effect to the court's intention; the original court was unaware possession had been taken, and its award on interest was predicated on Section 117. The application was allowed as prayed, with the order amended so interest runs from the date of judgment until payment in full, but with no order as to costs.

Key legal issues

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01

Whether Order 4 of the judgment of November 24, 2014 contains a clerical error correctable under Section 99 of the Civil Procedure Act

Holding

Yes; the order on interest was premised on Section 117 of the Land Act, 2012, and since possession had already been taken, the order as drafted was incapable of enforcement and denied the appellant accrued interest; the amendment gives effect to the court's original intention.

Reasoning

The court found that at the time of the 2014 judgment it was unaware possession had already been taken, as shown by the judgment's reference to land the Commission 'intends to compulsorily acquire'. Section 117(1) of the Land Act requires interest from the time of taking possession until payment. The impugned order, running interest only until the date of possession, would deny the appellant interest and render the orders unenforceable. Amending the order to run interest until payment in full gives effect to the court's intention and falls squarely within the slip rule.

p. 5

Legal principles established

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  • The slip rule under Section 99 applies to give effect to the intention of the court at the time judgment was given, or where the court is satisfied beyond doubt as to the order it would have made had the matter been brought to its attention
  • Section 99 is an exception to the functus officio doctrine permitting correction of clerical or arithmetical mistakes at any time

Court orders

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  1. 1.Order number 4 in the Judgment dated November 24, 2014 and order number 4 in the Decree issued on December 16, 2014 amended so as to read that the compensation award of Kshs 413,192,500/= shall be paid to the Appellant by the Respondent with interest at court rates from the date of judgment until payment in full
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 99
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 21 Rule 3(3)
  • Civil Procedure RulesOrder 23 Rule 3(3)
  • Land ActSection 117(1)

Cases cited (6)

  • Republic v Attorney General & 15 others ex-parte Kenya Seed Company Limited & 5 Others
    [2010] eKLR

    Codification of the common law 'slip rule' under Section 99; correction must give effect to the judge's intention and not redo the case

  • Royal Media Services & Another v Jakoyo Midiwo
    [2018] eKLR

    Interest on court-assessed damages runs from the date of judgment

  • Leonard Mambo Kuria v Ann Wanjiru Mambo
    (2017) eKLR

    Sections 99 and 100 vest general power to correct records; exception to functus officio; slip rule applies only to give effect to the court's intention

  • Jersey Evening Post Limited v Al Thani
    [2002] JLR 542

    Doctrine of functus officio does not prevent correction of clerical errors

  • Newmont Yandal Operations Pty Ltd v The J Aron Corp & The Goldman Sachs Group Inc
    [2007] 70 NSWLR 411

    Inherent jurisdiction extends to correcting a judgment where orders do not represent what the court intended

  • Lakhamshi Brothers Ltd v R Raja & Sons
    [1966] EA 313

    Slip rule applies to give effect to the intention of the court when it gave judgment

Jurisdiction invoked
Section 99 of the Civil Procedure Act and Order 21 Rule 3(3) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Five Star Agencies Ltd v National Land Commission", Case Analysis (2022). Civil Case 445 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14745/eng@2022-11-10

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