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ELCAllowedNot stated in judgment

Kiruki v Mwiti & 2 others; Mwithimbu (Applicant) (Environment & Land Case 6"A" of 2011) [2025] KEELC 972 (KLR)

Environment and Land Court
18 February 2025
OMOguttu Mboya
2,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed a successor judge can fix a misspelled party name in a judgment, even after the original judge was transferred.

What this practically means

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Executive summary

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The applicant, legal administrator of the estate of Janet Maringa M'Ikiara (the deceased 2nd Defendant), moved the court by Notice of Motion dated 29th January 2025 under sections 1A, 1B, 3, 3A, 99 and 100 of the Civil Procedure Act seeking correction of paragraph 41 of the judgment delivered on 17th October 2018, which misspelled his name as 'Julius Mutwiri Miringo' instead of 'Julius Mutwiri Mwithimbu', with costs in the cause. The respondent opposed, arguing that the error was made by a different judge now stationed at Nanyuki, that a pending appeal before the Court of Appeal (substantially heard, awaiting judgment) meant the application should await that determination, and that the correction was substantial and would alter the character of the judgment, amounting to superseding the decision of a court of coordinate jurisdiction. The court framed two issues: its jurisdiction to entertain the application, and whether the correction would alter the character of the judgment. Holding that judges are fallible and Parliament enacted section 99 to permit correction of typographical, clerical or arithmetical errors, the court held that where the judge who made the error has been transferred, the successor judge is seized of jurisdiction to correct it, a power not barred by functus officio (Telkom Kenya Ltd v John Ochanda) and also supportable under the court's inherent jurisdiction under section 3A. Since the applicant had been duly substituted as 2nd Defendant before judgment and the record confirmed his correct names, the misspelling was a mere typographical error that did not alter the judgment's character. The application was allowed and paragraph 41 corrected to read Julius Mutwiri Mwithimbu, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court is seized of the requisite jurisdiction to entertain the subject application
  2. 2.Whether the intended correction shall alter the character of the Judgment or otherwise

Key legal issues

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01

Jurisdiction of a successor judge to correct an error in a judgment under section 99 of the Civil Procedure Act

Holding

The successor of a transferred judge has jurisdiction to correct a typographical error under section 99 CPA; the correction is not barred by functus officio.

Reasoning

The court held that although the judge who made the mistake is ordinarily obligated to correct it, Parliament enacted section 99 to permit correction of typographical, clerical or arithmetical mistakes. Relying on Telkom Kenya Ltd v John Ochanda, corrections under section 99 are not prohibited by functus officio. The court also invoked the inherent jurisdiction under section 3A. Since the judgment judge was transferred, the present court could entertain the application.

p. 3
02

Whether correcting a misspelled party name alters the character of the judgment

Holding

A misspelling of a party's name is a typographical error correctable without altering the judgment's character; the correct name was confirmed by the Grant of Letters of Administration on record.

Reasoning

The applicant had been duly substituted as 2nd Defendant before judgment. The judgment judge was alive to the substitution but wrote 'Miringo' instead of 'Mwithimbu'. The record documentation confirmed the applicant's correct names, so the correction was merely a name correction, not a substantial alteration of the judgment.

p. 4

Legal principles established

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  • Where the judge who made a clerical or typographical error has been transferred, the successor judge is seized of jurisdiction to correct it under section 99 of the Civil Procedure Act.

Court orders

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  1. 1.The application is allowed
  2. 2.Paragraph 41 of the Judgment rendered on 17th October 2018 is corrected to reference Julius Mutwiri Mwithimbu and not Julius Mutwiri Miringo
  3. 3.Costs be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OM
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 99 and 100 of the Civil Procedure Act, Chapter 21, Laws of Kenya

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the foregoing reason[s], I encounter no dificulty in finding and holding that the application beforehand is meritorious. The same be and is hereby allowed. In this regard, paragraph 41 of the Judgment rendered on the 17th of October 2018; be and is hereby corrected.
p. 4Final orders - correction of judgment
Henceforth and for purposes of posterity, paragraph 41 of the Judgment rendered on the 17th of October 2018; shall reference Julius Mutwiri Mwithimbu [which is the correct names of the Legal Administrator of the 2ND Defendant, deceased] and not Julius Mutwiri Miringo.
p. 4Final orders - substitution of correct name
the correction of errors pursuant to section 99 of the Civil Procedure Act is not prohibited by the doctrine of functus oficio.
Functus officio and section 99 corrections

Issues in the judgment

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minor

The judgment names the respondent only as 'Plaintifi/Respondent' without a proper party name; the case number and the name of the judge who delivered the 2018 judgment are not stated.

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, "Kiruki v Mwiti & 2 others; Mwithimbu (Applicant) (Environment & Land Case 6"A" of 2011) [2025] KEELC 972 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/972/eng@2025-02-18

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