Lelei v Bittok & another (Environment and Land Case 414 of 2012) [2025] KEELC 6569 (KLR)
The bottom line
#Kenya's Environment and Land Court corrected a clerical error in eviction orders, confirming that procedural missteps won't block enforcement of valid judgments.
What this practically means
#Executive summary
#Key legal issues
#Whether filing a Notice to Act in Person without an order or consent under Order 9 Rule 9 is a nullity
No; the omission is a technical, curable defect not defeating jurisdiction or causing prejudice.
Order 9 Rule 9 requires leave or consent for a change of advocate or to act in person after judgment. However, citing Tobias M. Wafubwa v Ben Butali and Boniface Kiragu Waweru v James K. Mulinge, the court held that where non-compliance does not undermine jurisdiction or the core dispute or cause prejudice, Article 159(2)(d) and the overriding objective allow the court to dispense substantive justice rather than strike out the application.
Whether the Applicant established a ground for review of the eviction orders under Section 80 and Order 45
Yes; the misnaming of the officer to be served was an error apparent on the face of the record which materially obstructed execution of the decree.
Order 45 requires the applicant be aggrieved, no appeal preferred, and a recognised ground for review be shown. Applying Mramba v St Elizabeth Academy, Ajit Kumar Rath v State of Orisa and Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, the court found the misnaming of the officer was a plain clerical defect, self-evident without elaborate reasoning, which prevented enforcement of a valid order and justified rectification in favour of the proper officer.
Legal principles established
#- Non-compliance with Order 9 Rule 9 of the Civil Procedure Rules is not fatal but a curable omission under Article 159(2)(d) where it does not touch jurisdiction or prejudice any party.
- A clerical defect in an extracted order that obstructs execution is an error apparent on the face of the record justifying review.
Court orders
#- 1.The ruling delivered on 25th February 2020 be reviewed to the extent that the OCS, Lagas police station be ordered to provide police security to Paul K. Ole Yaile T/a Nasioki Auctioneers for the purposes of peace and order during the process of eviction of the plaintiff, his agents, employees and/or servants in Pioneer/Ngeria Block 1 (EATEC)113
- 2.Costs in the cause (as sought); the application was allowed 'with costs'
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lelei v Bittok & another (Environment and Land Case 414 of 2012) [2025] KEELC 6569 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 13th May 2024 in an ELC matter at Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6569/eng@2025-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.