Fara & another v Verge & another (Enviromental and Land Originating Summons 39 of 2019) [2024] KEELC 1237 (KLR)

any response to the application. The Application is therefore unopposed. The Plaintifis filed written submissions which I have carefully considered. 5. Section 99 and 100 of the Civil Procedure Act, Cap 21 state: “ 99. Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties. 100. General power to amend The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.” 6. The Court of Appeal in the case Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] eKLR extensively discussed the above provisions of the Civil Procedure Act as below: “ The application of these two sections [Sections 99 and 100 of the Civil Procedure Act, CAP 21] has been considered before in several decisions. They vest a general power to the courts to correct or amend their records. As such they are an exception to the doctrine of ‘functus oficio’-- the principle that once a decision has been given, it is (subject to any right of appeal) final and conclusive. It cannot be revoked or varied by the decision-maker. As the court stated in the case of Jersey Evening Post Limited v Ai Thani [2002] JLR 542 at 550: “ A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”. 7. In this case, I note that although the Plaintifis referred to the suit property as MW/III/414 Kikambala throughout their pleadings, it is clear that the property in dispute is or was MN/III/414 as can be seen in the judgment of the court and copy of title annexed as part of the plaintifis’ documents herein. in view of the foregoing, I am satisfied that the decree ought to be corrected. 8. In the upshot, I find merit in the Notice of Motion dated 27th September 2023 and it is hereby allowed as prayed. There shall however be no orders as to costs. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 7TH DAY OF MARCH 2024. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1237/eng@2024-03-07 2

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