Jivetti v Amutemi (Environment and Land Appeal E003 of 2021) [2023] KEELC 631 (KLR)
The bottom line
#Kenya's High Court confirmed that a court can correct an obvious omission in its own judgment — here adding an eviction order the landowner had asked for but was wrongly denied.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to grant an eviction order specifically pleaded and prayed for, where a permanent injunction was granted, constitutes an error apparent on the face of the record warranting review under Order 45
Yes. The omission was inadvertent, obvious on the face of the record, and rendered the judgment unenforceable since the Respondent resided on the suit land.
The trial court had found ownership of the suit land undisputed and granted a permanent injunction but omitted the pleaded eviction order. The appellant's problem was the Respondent's continued occupation; an injunction alone would be vain and unenforceable against a person residing on the land. The omission was an error in the awards, obvious without long drawn reasoning, hence an error apparent on the face of the record correctable by review.
Whether the trial court correctly held that the judgment was not subject to review and that it had become functus officio
No. The judgment was a decision reviewable under Order 45, and a court is not functus officio for the purpose of correcting an error in its judgment on review.
Order 45 identifies categories of decisions subject to review, and this judgment fell within them. Invoking Telkom Kenya v John Ochanda, the court held that functus officio bars only merit-based re-engagement after a final judgment; it does not prevent a court from correcting errors. The review application sought only correction of an error, not a revisit of the merits.
Whether the trial court properly awarded costs of the review application to the Respondent
No. The Respondent had not entered appearance or participated in the proceedings, and costs follow the event.
The Respondent neither entered appearance in the suit nor appeared or filed submissions in the review application or the appeal, so she had incurred no costs deserving an award. The trial court's award of costs to her had no basis; costs follow the event and the appeal on this ground also succeeded.
Legal principles established
#- An error in the awards made in a judgment, which is obvious and does not require a long drawn process of reasoning, is an error apparent on the face of the record correctable by review.
- A court is not functus officio when asked to correct an error in its judgment by way of review; functus officio bars only merit-based decisional re-engagement after final judgment.
Court orders
#- 1.The Ruling and orders of the trial court dated October 29, 2021 are set aside and replaced with an order allowing the Notice of Motion dated August 26, 2021
- 2.The judgement dated June 25, 2021 is reviewed and varied to include an order that the Respondent do vacate and hand over vacant possession of the suit land to the appellant within 60 days of the judgement, in default of which the Respondent will be evicted
- 3.The eviction to be executed by a duly licenced court bailiff or auctioneer in accordance with the law
- 4.The OCS Cheptulu police station to provide security and escort during the eviction exercise
- 5.Costs of the appeal to the Appellant
- On appeal from
- Hamisi Principal Magistrate's Court (Environment and Land)
- Hamisi PMC E&L Case No 1 of 2020
- Jurisdiction invoked
- First appeal from the subordinate court to the High Court (appeal against a ruling on review under Order 45 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jivetti v Amutemi (Environment and Land Appeal E003 of 2021) [2023] KEELC 631 (KLR)", Case Analysis (2023). Hamisi PMC E&L Case No 1 of 2020 (appeal against Ruling dated October 29, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/631/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.