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ELCAllowedNot stated in the judgment· [2025] KEELC 534 (KLR)

Njoroge v Kimondo (Legal Representative of the Estate of the Late Stephen Kimondo Kamau - Deceased) (Environment & Land Case 32 of 2012) [2025] KEELC 534 (KLR)

Environment and Land Court of Kenya
7 February 2025
8,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court corrected a costs error in its own judgment and stopped an unlawful auction of land.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined two Notice of Motion applications by Peter Kamau Kimondo, legal representative of the estate of the late Stephen Kimondo Kamau, the defendant in the plaint and plaintiff in the counter-claim. The first application, dated 12th June 2024, sought review of the Court's judgment of 28th April 2022 to amend the order on costs, contending that dispositive order (h) conflicted with the Court's finding at paragraph 77 of the judgment owing to an accidental typographical slip. The second application, dated 2nd October 2024, sought the setting aside and annulment of warrants of execution issued on 13th September 2024 at the instance of the plaintiff, Douglas Mungai Njoroge, who had lost the suit and whose subsequent appeal (Mombasa Court of Appeal Civil Appeal No. E069 of 2022) had been dismissed on 24th May 2024. The applicant argued that the plaintiff was not the decree holder, that the interest claimed (Kshs 4,644,389.40) was grossly miscalculated, and that execution against the suit property Mombasa/Block III/462 contravened the Court's orders. The Court framed three issues and allowed both applications. It held that the discrepancy between paragraph 77 and order (h) qualified as an error apparent on the face of the record, amending the costs order so that the plaintiff in the counter-claim receives costs payable jointly by the 1st and 2nd defendants in the counter-claim. Consequently, the warrants of execution were set aside and annulled. The Court noted it elected not to award costs on the applications, yet the final orders state there shall be costs to the application. No costs were refused; both applications succeeded in their entirety.

Key legal issues

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01

Whether the discrepancy between paragraph 77 and dispositive order (h) of the judgment of 28th April 2022 amounts to an error apparent on the face of the record justifying review

Holding

Yes - the dispositive order (h) contradicted the Court's finding at paragraph 77 on costs, constituting an error apparent on the record warranting review and amendment

Reasoning

The Court found it overlooked dispositive order (h) which made the plaintiff in the plaint solely liable for costs, contradicting paragraph 77 which condemned the 1st and 2nd Defendants in the Counter-Claim. The Court held this was an error apparent on the record and exercised its discretion under Section 80 and Order 45, guided by the overriding objective of the Environment and Land Court Act, to amend the costs order.

p. 15
02

Whether the warrants of execution issued on 13th September 2024 should be set aside and annulled

Holding

Yes - following the allowed review, the plaintiff was in contravention of the judgment and decree of 28th April 2022 and the warrants of execution were annulled

Reasoning

Having allowed the review application, the Court found the plaintiff's execution application contravened the judgment. The plaintiff, having lost the suit, was not entitled to execute against the successful defendant, and the execution would have nullified both the Environment and Land Court and Court of Appeal judgments.

p. 16

Legal principles established

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  • The Slip Rule permits a court to correct errors apparent on the face of a judgment without altering the substance of the judgment or sitting on appeal over its own judgment
  • Correction of clerical errors falls within the exceptions to the functus officio doctrine
  • Section 80 of the Civil Procedure Act gives the power of review while Order 45 restricts the grounds for review
  • A review is not an appeal and must be confined to error apparent on the face of the record
  • An application for execution can only be made by the decree holder and not the judgment debtor

Court orders

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  1. 1.The Notice of Motion application dated 12th June, 2024 be and is hereby found to have merit and the same is allowed in its entirety
  2. 2.The Notice of Motion application dated 2nd October, 2024 be and is hereby found to have merit and the same is allowed in its entirety
  3. 3.The Court reviews and varies its Orders dated 28th April, 2022 to amend the Order on Costs
  4. 4.The dispositive order (h) is amended to read: 'The Plaintifi in the counter claim shall have the costs of the Plaint and the Counter Claim to be paid jointly by the 1st and 2nd Defendant in the Counter claim.'
  5. 5.The Warrants of Execution issued on 13th September, 2024 are set aside and annulled
  6. 6.There shall be costs to this Application
Jurisdiction invoked
Sections 80 and 99 of the Civil Procedure Act, Cap 21; Order 45 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 34, 38 and 63 of the Civil Procedure Act

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, "Njoroge v Kimondo (Legal Representative of the Estate of the Late Stephen Kimondo Kamau - Deceased) (Environment & Land Case 32 of 2012) [2025] KEELC 534 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/534/eng@2025-02-07

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