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High CourtAllowedNot stated in the judgment text

Joseck Omutoko v Matayo Nabale & Meshack Matayo

High Court of Kenya
19 March 2009
1,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed that a judgment naming the wrong land parcel contains a clerical error that courts can correct through review.

What this practically means

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Executive summary

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Joseck Omutoko, the plaintiff in an adverse-possession suit against Matayo Nabale and Meshack Matayo, brought a Chamber Summons under Order 44 rule 1(a) of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking review of a judgment delivered on 17th March 1998 by Tanui, J. The complaint was that the judgment, while decreeing to the applicant one acre by adverse possession and ordering the respondent to sub-divide and transfer it, mistakenly identified the parcel as E. BUNYORE/EMUSIRE/1305 instead of E. BUNYORE/EBUNANGWE/1307, thereby frustrating execution. The respondent opposed, asserting the applicant had from the outset cited 1305 and that 1307 was the respondent's inherited property. Reviewing the record, Ochieng, J. found the applicant had consistently claimed E/BUNYORE/EBUNANGWE/1305 in the Originating Summons, the amended summons, the supporting affidavit, his formal-proof testimony and his exhibited official search, and never referred to EMUSIRE/1305. The court held the trial judge had erred by giving judgment over property that was not the subject matter of the case, constituting an error apparent on the face of the record. The court ordered the judgment corrected by deleting L.R. NO. E/BUNYORE/EMUSIRE/1305 and replacing it with L.R. NO. E/BUNYORE/EBUNANGWE/1307, and awarded costs of the application to the applicant. The application was therefore allowed. Notably, the substituted parcel (1307) differs from the parcel cited throughout the record (1305), an unexplained discrepancy.

Key legal issues

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01

Whether an error apparent on the face of the record existed in the 1998 judgment

Holding

Yes - the trial judge's judgment cited parcel E/BUNYORE/EMUSIRE/1305 whereas the pleadings, evidence and exhibit all concerned parcel E/BUNYORE/EBUNANGWE/1305, so the judgment was given over property not before the court.

Reasoning

The court traced the entire record: the Originating Summons, the Amended Originating Summons, the supporting affidavit, the applicant's oral evidence at formal proof, and the certified official search exhibited all consistently identified E/BUNYORE/EBUNANGWE/1305 as the suit property. Nowhere did the applicant refer to E/BUNYORE/EMUSIRE/1305. A judgment disposing of land that was never the subject matter of the suit therefore contains a self-evident error on the face of the record, correctable on review.

p. 3
02

What correction should be made to give effect to the judgment

Holding

The judgment is corrected by deleting L.R. NO. E/BUNYORE/EMUSIRE/1305 and substituting L.R. NO. E/BUNYORE/EBUNANGWE/1307.

Reasoning

The court noted the applicant's contention that the correct title was E. BUNYORE/EBUNANGWE/1307, while the record consistently cited EBUNANGWE/1305. Without adjudicating the discrepancy in the last digits afresh, the court accepted the applicant's stated position and ordered the correction sought, so that the one-acre adverse possession decree could be executed against the correct parcel.

p. 3

Legal principles established

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  • A judgment given in respect of property that was not the subject matter of the case contains an error apparent on the face of the record reviewable under Order 44 rule 1(a).

Court orders

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  1. 1.The error in the judgment of 17th March 1998 is corrected by deleting L.R. NO. E/BUNYORE/EMUSIRE/1305 and replacing it with L.R. NO. E/BUNYORE/EBUNANGWE/1307
  2. 2.Costs of the application awarded to the applicant
Jurisdiction invoked
Order 44 rule 1(a) of the Civil Procedure Rules as read together with section 3A of the Civil Procedure Act (review for error apparent on the face of the record)

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, "Joseck Omutoko v Matayo Nabale & Meshack Matayo", Case Analysis (2009). Not stated in the judgment text. Source: 

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