Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Case of which judgment was delivered on 15th March 2018 (adverse possession originating summons), Mombasa· [2024] KEELC 100 (KLR)

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)

Environment and Land Court
24 January 2024
1,870 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The defendants brought a notice of motion dated 28th August 2023 seeking amendment of order (b) of the ruling of 29th July 2020, which had set aside the judgment of 15th March 2018 entered in favour of the plaintiffs in an adverse possession claim and directed the Land Registrar to cancel the provisional title issued to the plaintiffs. The Registrar had declined to effect the cancellation because the order did not specify the land reference number, LR No. 398/II/MN (C.R 1006). The plaintiffs opposed, arguing the defendants had not complied with the further order to file a reply to the originating summons within 14 days. At an oral hearing on 20th November 2023, the 4th, 6th, 8th and 9th defendants appeared; counsel confirmed the 1st, 2nd, 3rd, 5th and 7th defendants had passed on. The court framed two issues: whether a reasonable case for review/amendment had been made, and costs. Relying on sections 99 and 100 of the Civil Procedure Act and the slip-rule authorities, the court held the amendment merely gives effect to its earlier intention and does not offend functus officio; the setting-aside order was not conditional on filing a reply. The court allowed the application in terms of prayer (2) and ordered costs to be in the cause, since the defendants bore no blame for the omission. Judgment delivered virtually by S. M. Kibunja, J, on 24th January 2024.

Key legal issues

#
01

Whether the court can amend its order of 29th July 2020 to specify the land reference number

Holding

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.

Reasoning

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.

p. 4
02

Whether the defendants' non-compliance with the order to file a reply within 14 days defeats the application

Holding

No - the setting aside order was not conditional on filing a reply, so non-compliance is no ground to refuse the amendment.

Reasoning

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.

p. 4
03

Costs of the application

Holding

Costs to abide the outcome of the suit since the defendants were not to blame for the omission.

Reasoning

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.

p. 4

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. 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. 2.The costs be in the cause.

Authorities

#

Legislation

  • Civil Procedure ActSection 99
  • Civil Procedure ActSection 100
  • Civil Procedure ActSection 27

Cases cited (5)

  • Leonard Mambo Kuria versus Ann Wanjiru Mambo
    (2017) eKLR
  • Jersey Evening Post Limited vs. Ai Thani
    [2002] JLR 542
  • 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
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.