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ELCAllowedELC Case (judgment delivered November 25, 2022; related ELC Case No. 116 of 2018)· [2023] KEELC 653 (KLR)

Katam v Sigira (Environment and Land Case Civil Suit 56 of 2018) [2023] KEELC 653 (KLR)

Environment and Land Court
14 February 2023
1,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This ruling arises from the court's own-motion mention of January 18, 2023, called to rectify an error apparent on the face of its judgment of November 25, 2022, in which paragraph 28 both allowed the Originating Summons dated August 15, 2018 and simultaneously dismissed it. Counsel for the plaintiff, Mr Onduso, sought rectification so that the judgment would read that the Originating Summons was allowed. Counsel for the defendant, Mr Kilele, opposed, noting that a notice of appeal against the entire judgment had been filed, that the alleged error was itself a ground of appeal, and that the court was functus officio. The single issue was whether the court could review its own judgment of November 25, 2022. The court held that the functus officio doctrine yields to the slip rule in section 99 of the Civil Procedure Act, which permits correction of clerical mistakes or accidental slips on the court's own motion or on application, and relied on the Kenya Seed Company decision for the principle that the slip rule applies to give effect to the court's actual intention without sitting on appeal over its own decision. It also invoked sections 1, 1A, 3 and 3A of the Civil Procedure Act and article 159 of the Constitution. The court found the error patent: paragraph 28 should have read 'Counter Claim' instead of 'Originating Summons'. It amended paragraph 28 accordingly, without altering the substance of the judgment, and held that rectification does not bar the defendant from appealing. Each party was to bear its own costs.

Key legal issues

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01

Whether the court is functus officio after delivering judgment

Holding

The functus officio rule yields to section 99 of the Civil Procedure Act (the slip rule), which permits correction of clerical mistakes or errors arising from accidental slip or omission, either on the court's own motion or on application.

Reasoning

The court noted the doctrine has exceptions. Section 99 of the Civil Procedure Act codifies the slip rule, part of the court's inherent jurisdiction. The court had, of its own motion, issued a mention notice to inform parties of the error in its judgment of November 25, 2022. Relying on the Kenya Seed Company decision, the slip rule permits reopening only for limited purposes, including giving effect to the court's actual intention, which is what occurred here.

p. 3
02

Whether the error in paragraph 28 is apparent on the face of the record

Holding

Yes. Paragraph 28 both allowed and dismissed the Originating Summons; the intended wording was 'Counter Claim' where 'Originating Summons' appeared, and the rectification does not alter the substance of the judgment.

Reasoning

Paragraph 28 found merit in the Originating Summons and granted declarations and specific performance, yet simultaneously stated the Originating Summons was dismissed - an obvious contradiction. The dismissal actually related to the Counter Claim. The court relied on Chandrakhant Joshibhai Patel v R, that an apparent error must be an obvious and patent mistake visible without lengthy reasoning.

p. 4
03

Inherent jurisdiction to correct errors in the interests of justice

Holding

Sections 1, 1A, 3 and 3A of the Civil Procedure Act and article 159 of the Constitution reserve the court's inherent jurisdiction to correct the error to meet the ends of justice and prevent abuse of court process.

Reasoning

Having discovered the error on its own motion, the court held it could not close its eyes and fold its hands in resignation. Rectification does not prejudice the defendant, who remains free to file a memorandum of appeal challenging the judgment as rectified.

p. 4

Legal principles established

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  • A court retains jurisdiction under the slip rule to correct clerical errors apparent on the face of its judgment and is not functus officio for that purpose.
  • An error apparent on the face of the record must be an obvious and patent mistake, not one established by a long drawn process of reasoning.

Court orders

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  1. 1.Paragraph 28 of the judgment delivered on November 25, 2022 is amended so that the words 'Originating Summons' are substituted for 'Counter Claim'
  2. 2.Each party to bear its own costs (as contained in the rectified paragraph 28)

Authorities

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Legislation

  • Civil Procedure Actsection 99
  • Civil Procedure RulesOrder 21 Rule 3(3)
  • Civil Procedure Actsections 1, 1A, 3 and 3A
  • Constitution of Kenyaarticle 159

Cases cited (4)

  • Republic v Attorney General & 15 others, Ex-Parte Kenya Seed Company Limited & 5 others
    [2010] eKLR
  • Newmont Yandal Operations Pty Ltd v The J. Aron Corp & The Goldman Sachs Group Inc
    [2007] 70 NSWLR 411
  • Lakhamshi Brothers Ltd v R Raja & Sons
    [1966] EA 313
  • Chandrakhant Joshibhai Patel v R
    [2004] TLR 218
Jurisdiction invoked
Section 99 of the Civil Procedure Act (slip rule); sections 1, 1A, 3 and 3A of the Civil Procedure Act; article 159 of the Constitution

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, "Katam v Sigira (Environment and Land Case Civil Suit 56 of 2018) [2023] KEELC 653 (KLR)", Case Analysis (2023). ELC Case (judgment delivered November 25, 2022; related ELC Case No. 116 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/653/eng@2023-02-14

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