Joseck Omutoko v Matayo Nabale & Meshack Matayo
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an error apparent on the face of the record existed in the 1998 judgment
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.
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.
What correction should be made to give effect to the judgment
The judgment is corrected by deleting L.R. NO. E/BUNYORE/EMUSIRE/1305 and substituting L.R. NO. E/BUNYORE/EBUNANGWE/1307.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.