Kithinji (Suing on her behalf and on behalf of 5 others) v Swale & 8 others (Environment & Land Case 248 of 2016) [2024] KEELC 100 (KLR)
The bottom line
#A Mombasa court confirmed it can correct its own order to include a missing land reference number, letting a title cancellation finally proceed.
What this practically means
#Executive summary
#Key legal issues
#Whether the court can amend its order of 29th July 2020 to specify the land reference number
Yes - the amendment falls within sections 99 and 100 of the Civil Procedure Act and the court's inherent powers, as it merely gives effect to the court's earlier intention.
The order of 29 July 2020 directed the Land Registrar to cancel the provisional title but omitted the land reference number, causing the Registrar to decline implementation. The slip rule permits correction to give effect to the court's actual intention, and the omission was inadvertent. The application does not invite the court to rehear the matter or alter the substance of the ruling.
Whether the defendants' non-compliance with the order to file a reply within 14 days defeats the application
No - the setting aside order was not conditional on filing a reply, so non-compliance is no ground to refuse the amendment.
The plaintiffs argued the defendants had not filed their reply to the originating summons as ordered. The court held the setting-aside was unconditional and the amendment application stands independently of that obligation.
Costs of the application
Costs to abide the outcome of the suit since the defendants were not to blame for the omission.
Under section 27 of the Civil Procedure Act costs follow the event, but the court discretionarily ordered costs in the cause because the failure to include the suit property details was not attributable to the defendants.
Legal principles established
#- Sections 99 and 100 of the Civil Procedure Act vest a general power in courts to correct or amend their records, an exception to the functus officio doctrine, but the slip rule cannot be used to sit in appeal on one's own decision or to alter the substance of a judgment.
- A court has residual or inherent powers to amend its order so as to give effect to its own orders where an omission prevents implementation.
Court orders
#- 1.The defendants' notice of motion dated the 28th August 2023 be and is hereby allowed in terms of prayer (2) (amendment of order (b) of 29th July 2020 to include the suit property LR No. 398/II/MN (C.R 1006)).
- 2.The costs be in the cause.
- Jurisdiction invoked
- Section 99 and Section 100, Civil Procedure Act (Cap 21); inherent/residual powers of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithinji (Suing on her behalf and on behalf of 5 others) v Swale & 8 others (Environment & Land Case 248 of 2016) [2024] KEELC 100 (KLR)", Case Analysis (2024). ELC Case of which judgment was delivered on 15th March 2018 (adverse possession originating summons), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/100/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.