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ELCPartially AllowedEnvironment and Land Case Civil Suit 330 of 2011· [2023] KEELC 18034 (KLR)

Gachui (Suing in her capacity as executrix of the estate of James Mungai Gachui – Deceased) & another v Ouko & 2 others

Environment and Land Court at Nairobi
14 June 2023
LMLucy N. Mbugua
4,936 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 a land judgment that understated a buyer's plot from 2½ to about 4.942 acres, confirming documents already on file can fix court errors.

What this practically means

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Executive summary

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This document comprises a review ruling of 14 June 2023 together with the amended judgment in the underlying suit. In the underlying suit, Anne Pearl Karimi Gachui, executrix of James Mungai Gachui, claimed a portion (plot G) of L.R. No. 3589/6 in Karen, purchased from Simon Njenga in 1979/1980, against the administrators of the original vendor Jason Atinda Ouko, who denied the subdivision and the sale. The court found Simon Njenga held a beneficial interest which he transferred to Gachui with notice to the vendor, who never disturbed the plaintiff's occupation; the defendants admitted awareness of the subdivision scheme and of decrees in related cases ordering subdivision. The claim was allowed: the defendants were compelled to complete the subdivision and issue a title for plot G, a permanent injunction issued, and costs awarded to the plaintiff, but general damages for trespass were refused for lack of evidence of actual eviction. The original judgment's final order stated the acreage as 2½ acres. The plaintiff then applied for review under Section 80 of the Civil Procedure Act and Order 45, contending the correct acreage was 4.942 acres per the approved subdivision scheme plan. The respondents' submissions, anchored on a replying affidavit not on the file, were disregarded. Applying the self-evident error test in National Bank of Kenya v Ndungu Njau, the court found the correct acreage discernible from the subdivision scheme plan (2.029 ha) and allowed the review, amending paragraph 43 of the judgment to reflect approximately 4.942 acres, with each party bearing its own costs of the application.

Key legal issues

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01

Whether the acreage stated in the judgment of 13.10.2022 was an error apparent on the face of the record

Holding

Yes - the correct acreage could be discerned from the subdivision scheme plan (2.029 ha, about 5 acres), so the reference to 2½ acres was an inadvertent error warranting review

Reasoning

The court noted the plaint's paragraph 7 and final prayers did not capture 4.9 acres, and the sale agreements referred to 2½ acres and plot 'G'. However, the subdivision scheme plan availed as 'FWKC' in PW1's affidavit showed the plot of Gachui as 2.029 ha, which the court found equivalent to about 5 acres. Since the correct figure was discernible from the record without additional evidence, the error was apparent on the face of the record and review was merited.

02

Whether respondents' submissions anchored on a replying affidavit not on record could be relied upon

Holding

No - the replying affidavit sworn 17.3.2023 was neither in the physical file nor on the CTS, so the submissions were disregarded

Reasoning

The respondents relied on a replying affidavit said to be dated 17.3.2023, but the court found the document was neither in the physical court file nor on the online filing system. Without a foundational pleading on record, the submissions could not stand, and the court disregarded them, citing the Konchellah authority.

p. 2

Legal principles established

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  • A court becomes functus officio after judgment and may only revisit it as provided by law
  • An error apparent on the face of the record must be self-evident and not require elaborate argument

Court orders

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  1. 1.The application dated 18.1.2023 is allowed
  2. 2.Each party to bear their own costs of the application
  3. 3.The judgment delivered on 13.10.2022 is to be amended to capture the changes at paragraph 43 of the judgment
  4. 4.Paragraph 43(1) corrected to read that the Defendants are compelled to complete the sub-division of L.R. No. 3589/6 and issue a title to the Plaintiff in respect of L.R. 3589/6 (G) measuring approximately 4.942 acres

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45

Cases cited (17)

  • National Bank of Kenya Limited v Ndungu Njau
    (Civil Appeal No. 211 of 1996); (1997) eKLR

    Error apparent on the face of the record must be self-evident and not require elaborate argument

  • Nyamogo and Nyamogo v Kogo
    [2002] 1EA

    Review on basis of error apparent on the record

  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR

    Submissions not anchored on foundational pleading are disregarded

  • Menginya Salim Murgani v Kenya Revenue Authority
    [2014] eKLR

    Functus officio principle - court cannot revisit judgment save as provided by law

  • Peter Nyaga Kairu v Esther Wanjiku Njau & 5 others
    [2019] eKLR

    Mortui non mordent maxim - dead men don't tell tales

  • Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maina
    [2019] eKLR

    Nemo dat quod non habet principle protecting true owner's title

  • Reliable Electrical Engineers Ltd Vs Mantrac Kenya Limited
    [2006] eKLR

    Specific performance is discretionary and requires a valid enforceable contract

  • John Mark Wandolo v Paul Nganga Nage
    [2020] eKLR

    Cited Homes Ltd v Kays Investment Ltd on equity regarding as done that which ought to be done

  • Homes Ltd vs Kays Investment Ltd
    [2015] eKLR

    Quoted Manzoor v Baram - specific performance grounded in equitable maxim

  • Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri
    [2014] eKLR

    Vendor standing by while purchaser incurs expense cannot later assert agreement unenforceable

  • Steadman –vs- Steadman
    [1976] AC 536, 540

    Lord Reid on estoppel where a party stands by on the faith of an agreement

  • Hellen Wanjiru Mwangi v Administrators to the Estate of Jason Atinda Ouko
    [2020] eKLR

    Estate liable to complete sale transaction by obtaining registration of purchaser

  • Gurdev Singh Birdi & Another vs Abubakar Madhbuti
    [1996] eKLR

    Specific performance granted where just and equitable despite non-essential defaults

  • Joseph Kamau Ngiria v Martin T. Waithaka
    Nairobi HCCC 673 of 1985

    Sale of one acre from same parcel LR 3589/6 held legitimate

  • Joseph Kamau Ngiria vs. Roselyn Dola Ouko & 2 Others
    (2019) eKLR

    Cited the Ngiria v Waithaka case concerning the same land

  • Rose Waruinu Muthemba v Rosalyna Dola Ouko & 2 others
    [2020] eKLR

    Suit property purchased after delineation and boundaries marked

  • Karen Kwamboka Okari vs. Roselyn Dola Ouko & 2 others
    ELC 493 of 2011 (OS)

    Order directing subdivision of LR 3589/6 and issuance of individual titles

Jurisdiction invoked
Section 80 of the Civil Procedure Act (Cap. 21) and Order 45 of the Civil Procedure Rules (review of judgment)

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, "Gachui (Suing in her capacity as executrix of the estate of James Mungai Gachui – Deceased) & another v Ouko & 2 others", Case Analysis (2023). Environment and Land Case Civil Suit 330 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18034/eng@2023-06-14

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