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ELCPartially AllowedNot stated in judgment (ELC Malindi, Notice of Motion dated 27th September 2023)· [2024] KEELC 1237 (KLR)

Fara & another v Verge & another (Enviromental and Land Originating Summons 39 of 2019) [2024] KEELC 1237 (KLR)

Environment and Land Court
7 March 2024
MNMwangi Njoroge
673 words in judgment
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The bottom line

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A Kenyan court confirmed it can fix a typo in a court decree even after judgment, correcting a land title reference from MW/III/414 to MN/III/414 Kikambala.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 27th September 2023 brought by the plaintiff under Sections 99, 100 and 3A of the Civil Procedure Act seeking rectification of a decree issued on 16th July 2021 following a judgment in his favour. The judgment had referred to the suit property as MN/III/414 Kikambala, but the decree erroneously described it as MW/III/414 Kikambala. The plaintiff sought correction of the description to MN/III/414 Kikambala. Despite substituted service through the Standard Newspaper of 24th November 2023, the defendants - who had also not entered appearance in the main suit - filed no response, leaving the application unopposed. The court set out Sections 99 and 100 of the Civil Procedure Act, which permit correction of clerical or arithmetical mistakes and general amendment of defects or errors, and applied the Court of Appeal's decision in Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] eKLR, which holds that these powers are an exception to the functus officio doctrine. Quoting Jersey Evening Post Limited v Al Thani [2002] JLR 542, the court noted that the doctrine does not prevent correction of clerical errors. Finding that the pleadings bore a typographical error while the judgment and the annexed title clearly identified the property in dispute as MN/III/414, the court allowed the application as prayed and ordered rectification of the decree, with no orders as to costs. Dated, signed and delivered at Malindi via electronic mail on 7th March 2024 by Mwangi Njoroge, Judge, ELC, Malindi.

Key legal issues

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01

Whether a decree may be rectified under Sections 99 and 100 of the Civil Procedure Act to correct a clerical error in the description of the suit property

Holding

Yes; where the pleadings contained a typographical error but the judgment and the title document clearly identify the disputed property, the decree ought to be corrected

Reasoning

The court noted that although the plaintiff referred to the suit property as MW/III/414 Kikambala throughout the pleadings, the judgment itself and the copy of title annexed to the plaint clearly identified the property in dispute as MN/III/414. The error was a clerical mistake or accidental slip falling within Section 99, and Section 100 confers a general power to amend defects or errors. Relying on the Court of Appeal's exposition in Leonard Mambo Kuria v Ann Wanjiru Mambo, the correction does not offend functus officio because the doctrine does not prevent correction of clerical errors.

p. 2

Legal principles established

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  • Sections 99 and 100 of the Civil Procedure Act vest a general power in the courts to correct or amend their records, and are an exception to the functus officio doctrine

Court orders

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  1. 1.The Notice of Motion dated 27th September 2023 is allowed as prayed
  2. 2.The decree issued on 16/7/2021 is rectified by amending/correcting the description of the suit property from MW/III/414 Kikambala to read MN/III/414 Kikambala
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 99
  • Civil Procedure Act, Cap 21Section 100
  • Civil Procedure Act, Cap 21Section 3A

Cases cited (2)

  • Leonard Mambo Kuria v Ann Wanjiru Mambo
    [2017] eKLR
  • Jersey Evening Post Limited v Al Thani
    [2002] JLR 542
Jurisdiction invoked
Sections 99, 100 and 3A of the Civil Procedure Act (Cap 21)

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, "Fara & another v Verge & another (Enviromental and Land Originating Summons 39 of 2019) [2024] KEELC 1237 (KLR)", Case Analysis (2024). Not stated in judgment (ELC Malindi, Notice of Motion dated 27th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1237/eng@2024-03-07

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