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ELCAllowedNot stated in the judgment (application dated 13th May 2024 in an ELC matter at Thika)· [2025] KEELC 6569 (KLR)

Lelei v Bittok & another (Environment and Land Case 414 of 2012) [2025] KEELC 6569 (KLR)

Environment and Land Court
29 September 2025
2,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st Defendant/Applicant, Hosea Bittok, moved the Environment and Land Court at Thika by a Notice of Motion dated 13th May 2024 seeking review of the court's ruling of 25th February 2020 so that eviction orders be directed to the OCS, Lagas Police Station, who would provide police security during eviction of the Plaintiff from Pioneer/Ngeria Block 1 (EATEC)113. The Applicant explained that while executing the decree, the County Commander and OCPD informed him that eviction orders must be addressed to the OCS, and attributed the misnaming to an inadvertent error by his former counsel. The Plaintiff opposed, contending inter alia that the Applicant, previously represented by Kamau Lagat & Company Advocates, had filed a Notice to Act in Person without leave, rendering the application a nullity under Order 9 Rule 9. The court framed one main issue: whether the Applicant had laid a proper basis for review. On the representation point, the court held that non-compliance with Order 9 Rule 9 was a venial, curable defect not touching jurisdiction or causing prejudice, relying on Wafubwa v Butali and Waweru v Mulinge under Article 159(2)(d). On review, applying Section 80, Order 45 and the restrictive principles in Ex parte Apollo Mboya and Ajit Kumar Rath, the court found the misnaming of the officer to be a plain clerical error apparent on the face of the record which materially obstructed enforcement of a valid decree. The application was allowed with costs.

Key legal issues

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01

Whether filing a Notice to Act in Person without an order or consent under Order 9 Rule 9 is a nullity

Holding

No; the omission is a technical, curable defect not defeating jurisdiction or causing prejudice.

Reasoning

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.

p. 3
02

Whether the Applicant established a ground for review of the eviction orders under Section 80 and Order 45

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Costs in the cause (as sought); the application was allowed 'with costs'

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure ActSection 80
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Tobias M. Wafubwa v Ben Butali
    [2017] eKLR
  • Boniface Kiragu Waweru vs James K. Mulinge
    [2015] eKLR
  • Mramba & 45 others v St Elizabeth Academy - Karen Limited & 2 others
    [2024] KEELC 5728 (KLR)
  • Ajit Kumar Rath v State of Orisa & Others
    (1999) 9 SCC 596
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010

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, "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.