Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Appeal 48 of 2020· [2023] KEELC 19907 (KLR)

Muchungo v Gitau

Environment and Land Court
18 September 2023
2,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed it can fix errors in its own judgment before it is perfected, allowing a landowner's appeal to take full effect despite a drafting mistake.

What this practically means

#

Executive summary

#
This ruling by JG Kemei J of the Environment and Land Court at Thika determined a notice of motion dated 14 December 2022 by the Appellant, Ngendo Wainaina Muchungo, seeking correction of the Court's judgment of 13 October 2022, which had allowed her appeal entirely against the trial court's dismissal of her claim over title Ruiru/Kiu/Block 2 Githunguri 3997. The Appellant's memorandum of appeal had omitted specific prayers to have the reliefs in the amended Plaint of 13 September 2019 granted upon allowing the appeal; she sought insertion of orders setting aside the judgment of Hon M W Wanjala SRM in Thika CMCC No 717 of 2014 and substituting an order allowing her suit as prayed. The Respondent opposed, arguing the Court was functus officio, that new grounds not in the memorandum could not be urged, and that an appeal was pending in the Court of Appeal. The Court first held the Respondent's advocates were properly on record under Order 9 rule 9(b), a consent having been filed. On the merits, applying Sections 99 and 100 of the Civil Procedure Rules and Leonard Mambo Kuria v Ann Wanjiru Mambo, the Court held functus officio does not bar correction of errors before perfection of judgment; the correction introduced nothing new, as the Respondent had litigated the amended Plaint's claim throughout. The application was allowed and the judgment corrected accordingly, but costs of the application were awarded to the Respondent because the Appellant's drafting mistake necessitated the application.

Key legal issues

#
01

Whether the incoming firm of advocates was properly on record

Holding

The firm was properly on record, having filed a consent for change of advocates under Order 9 rule 9(b); the issue became moot

Reasoning

The Respondent had previously been represented by Milimo & Co Advocates. A consent filed on 19/10/2022 allowed the new firm, Bryan Khaemba Kamau & Co Advocates, to come on record. The Court held this complied with Order 9 rule 9(b), rendering the objection moot.

p. 4
02

Whether the Court, having delivered judgment allowing the appeal, was functus officio and could not correct the judgment to include substitution orders

Holding

The Court was not barred; the correction merely gave effect to its judgment allowing the appeal entirely, since setting aside the trial judgment left the claim in the amended Plaint, which the appellate judgment allowed in its entirety

Reasoning

Sections 99 and 100 of the Civil Procedure Rules permit correction of clerical mistakes and amendment of defects. Citing Leonard Mambo Kuria v Ann Wanjiru Mambo, the Court held functus officio does not prevent correction of errors before perfection of the judgment. Nothing new was introduced; the Respondent had litigated the amended Plaint's claim from the trial court through the appeal. Refusing the correction would create an absurdity.

p. 5
03

Whether the pendency of an appeal to the Court of Appeal barred the correction

Holding

The contention failed for want of evidence of any appeal or stay orders

Reasoning

The Respondent asserted the judgment had been appealed, but produced no evidence of an appeal or of orders from the appellate court staying the decision of this Court. The objection was therefore unsupported.

p. 5

Legal principles established

#
  • The functus officio doctrine does not prevent a court from correcting clerical errors or giving effect to its own judgment; proceedings are only concluded when the judgment has been perfected
  • Where an appellate judgment sets aside the trial judgment and allows the appeal entirely, the claim as pleaded in the amended Plaint remains and the court may give effect to that judgment by substituting orders allowing the suit as prayed

Court orders

#
  1. 1.The application dated 14/12/2022 is allowed
  2. 2.The appeal is allowed in the following terms: the Judgment by Hon M W Wanjala SRM in Thika CMCC No 717 of 2014 delivered on 29/10/2020 and the resultant decree is set aside and substituted with an order allowing the Appellant's suit as prayed in the amended Plaint dated 13/9/2019
  3. 3.Costs of the application are in favour of the Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 9 rule 9
  • Civil Procedure RulesOrder 42 rule 4
  • Civil Procedure RulesSection 99
  • Civil Procedure RulesSection 100

Cases cited (1)

  • Leonard Mambo Kuria Vs. Ann Wanjiru Mambo
    [2017] eKLR

    Functus officio does not prevent correction of clerical errors; proceedings conclude only when judgment is perfected

On appeal from
Chief Magistrate's Court (trial court), Thika
Thika CMCC No 717 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act/Rules (Order 42), with Sections 99 and 100 of the Civil Procedure Rules invoked for correction of judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muchungo v Gitau", Case Analysis (2023). Environment and Land Appeal 48 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19907/eng@2023-09-18

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