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ELCDismissedApplication dated 24th February 2022 in Petition dated 13th September 2010· [2023] KEELC 66 (KLR)

Zinj Limited v Attorney General & 4 others (Environment and Land Petition 2 of 2010) [2023] KEELC 66 (KLR)

Environment and Land Court
19 January 2023
EME. K. Makori
2,584 words in judgment
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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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Zinj Limited petitioned the Environment and Land Court at Malindi seeking rectification of the decree issued in its favour to conform to the Supreme Court's judgment of 31st December 2021 in Attorney General vs Zinj Limited. The underlying dispute concerned land LR No. 25528 in Kilifi County, over which Olola J. had in 2018 found unlawful compulsory acquisition and violation of the petitioner's right to property, awarding Kshs. 464,973,248.70. The Court of Appeal varied the computation of compensation and damages, and the Supreme Court ultimately affirmed the original award of Kshs. 464,973,248.70, set aside the Court of Appeal's awards on the 'un-acquired' portion, and ordered each party to bear its own costs. The sole issue before E. K. Makori J. was whether the ELC could recall and amend its decree to accord with the Supreme Court's orders. The petitioner argued the court possessed inherent power and that res judicata did not bar consequential, facilitative processes; the respondents contended the court was functus officio and that the petitioner should extract a decree from the Supreme Court under the Civil Procedure Rules. The court held there was no clerical mistake or error apparent on the face of the record under Sections 99 and 100 of the Civil Procedure Act, and that extraction and enforcement of the Supreme Court's decree is an administrative matter between the Registrars, governed by Sections 30 and 31 of the Civil Procedure Act, Order 21 rule 8, and Rules 29 and 30 of the Supreme Court Rules. The application was dismissed with costs to the respondents.

Key legal issues

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Whether the ELC has power to recall and rectify its decree to conform to the Supreme Court's judgment

Holding

The application was dismissed; no error or clerical mistake existed under Sections 99 and 100 of the Civil Procedure Act, and the correct route is administrative extraction of the Supreme Court decree under Sections 30-31 of the Act, Order 21 rule 8, and Rules 29 and 30 of the Supreme Court Rules.

Reasoning

The court noted the matter had been finally determined by the Supreme Court and only extraction and execution remained. It found no clerical or arithmetical mistake or error apparent on the face of the record to rectify or review. The doctrines of res judicata and functus officio were inapplicable because the task is administrative, not judicial. The applicant was held to have invoked erroneous provisions; the proper procedure is via the Registrar of the Supreme Court remitting the decree for enforcement.

p. 5

Legal principles established

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  • Extraction of a Supreme Court decree and orders for execution after exhaustion of appeals is an administrative matter between the Registrar of the Supreme Court and the Registrar of the executing court, not a judicial function of the trial court.
  • The doctrines of res judicata and functus officio do not bar the administrative extraction and enforcement of a superior court's decree.

Court orders

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  1. 1.The application dated 24th February 2022 is hereby dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 40(3); Article 40
  • Registration of Titles ActCap. 281 (repealed)
  • Civil Procedure ActSections 99, 100, 30, 31 (Part III)
  • Civil Procedure RulesOrder 21, rule 8
  • Supreme Court RulesRules 29 and 30 (LN No. 101 of 4th June 2020)
  • Land Acquisition ActSchedule (repealed)

Cases cited (3)

  • Mombasa Bricks & Tiles Ltd & 5 Others vs Arvind Shah & 7 Others
    [2018] eKLR
  • National Bank of Kenya Ltd. -vs Ndungu Njau
    [1997] eKLR
  • Attorney General vs Zinj Limited (Petition 1 of 2020)
    [2021] KESC 23 (KLR) (Civ) (3 December 2021)
Jurisdiction invoked
Original constitutional petition jurisdiction; application for rectification of decree under Sections 99 and 100 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, "Zinj Limited v Attorney General & 4 others (Environment and Land Petition 2 of 2010) [2023] KEELC 66 (KLR)", Case Analysis (2023). Application dated 24th February 2022 in Petition dated 13th September 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/66/eng@2023-01-19

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