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ELCDismissedNot stated in the judgment· [2024] KEELC 3386 (KLR)

Midega v Akudo (Environment & Land Case 11 of 2021) [2024] KEELC 3386 (KLR)

Environment and Land Court
25 April 2024
2,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court corrected a typo in a consent order but refused to reopen it to include a deceased owner's parcel.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (Koross, J) disposes of a notice of motion dated 5/10/2023 by the plaintiff seeking review of consent orders adopted on 10/05/2023. The underlying suit, a trespass and boundary dispute over land parcels Uyoma/Kokwiri/3052, 3053, 3055 and 3056, had been pending for nine years. The parties recorded a consent on 24/4/2023 directing the county surveyor to fix new boundaries, but on adoption the court referred to 'Siaya/Kokwiri/3053 and 3055' and deliberately excluded Uyoma/Kokwiri/3052 because its registered owner, Akudo Waka, was deceased and his estate was not a party. The plaintiff sought review to include parcels 3052 and 3053 and to have the Deputy Registrar execute documents for the deceased's estate. The defendant did not oppose. The court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1, adopting the principles in Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya. It held there was a typographical error ('Siaya' for 'Uyoma') rectifiable under Section 99 of the Civil Procedure Act, but no error on the face of the record in the deliberate exclusion of parcel 3052, which respected the deceased estate's right to a fair hearing under Article 50 and audi alteram partem. The plaintiff was advised he could pursue citation proceedings under the Probate and Administration Rules. The motion was dismissed with the plaintiff bearing his own costs, the consent order was amended to correct the typographical error, and mention was set for 29/05/2024.

Key legal issues

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01

Whether the court erred in omitting Uyoma/Kokwiri/3052 from the adopted consent order

Holding

The omission was a deliberate judicial decision, not an error apparent on the face of the record, because the registered owner was deceased and his estate was not a party

Reasoning

The court, when adopting the consent, deliberately excluded parcel 3052 since its registered owner, Akudo Waka, was deceased and his unadministered estate was not before the court. Excluding it protected the deceased estate's right to a fair hearing under Article 50 of the Constitution and the audi alteram partem principle. Such a deliberate decision cannot amount to an error apparent on the face of the record justifying review under Section 80 and Order 45 Rule 1.

p. 4
02

Whether the reference to 'Siaya/Kokwiri' parcels was a reviewable error

Holding

It was a typographical error rectifiable under Section 99 of the Civil Procedure Act, not a ground for review

Reasoning

The adopted order mistakenly referred to 'Siaya/Kokwiri/3053 and 3055' instead of 'Uyoma/Kokwiri/3053 and 3055'. The court found this was an obvious typographical slip, visible on the face of the record and not requiring long reasoning, and corrected it directly under Section 99 of the Civil Procedure Act rather than through the review jurisdiction under Order 45 Rule 1.

p. 4
03

Jurisdiction over boundary rectification

Holding

Rectification of boundaries lies with the department of surveying, mapping and land registration under Section 16 of the Land Registration Act

Reasoning

The court observed that the predominant issue between the parties is a boundary dispute, and the process of rectifying boundaries and issuing new parcel numbers is one envisaged by Section 16 of the Land Registration Act, whose jurisdiction lies with the department of surveying, mapping and land registration rather than being re-opened through the present motion.

p. 6

Legal principles established

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  • A consent order can only be set aside or varied on proof of fraud, collusion, agreement contrary to the policy of the court, or insufficient material facts, or otherwise by consent of the parties

Court orders

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  1. 1.The consent order adopted on 10/5/2023 is amended at paragraph 2 to refer to Uyoma/Kokwiri/3053 and Uyoma/Kokwiri/3055
  2. 2.The notice of motion dated 5/10/2023 is dismissed with the plaintiff bearing his own costs
  3. 3.Mention for further directions on 29/05/2024
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review); Section 99 Civil Procedure Act (rectification of typographical error)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Midega v Akudo (Environment & Land Case 11 of 2021) [2024] KEELC 3386 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3386/eng@2024-04-25

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