Nzyoka & another v Kilumo & 3 others

measuring 130ft x 145ft and 43ft x 108ft respectively from LR NO. NZAUI/IKANGAVYA/244 within 90 days of this judgment and in default the Deputy Registrar of this court do execute the requisite transfer documents. 3. The application is premised on the grounds appearing on its face together with the supporting affidavit of Mbenya Ngenga Nzyoka sworn on 11 th November, 2025. The deponent averred that this court delivered its judgment on 21 st October, 2025 ordering the transfer of land portions measuring 130m x 145m and 43m x 108m respectively from LR No. NZAUI/IKANGAVYA/244 within 30 days of the judgment and in default the Deputy Registrar of this court do execute the requisite transfer documents. 4. The Applicant contended that upon reading through the judgment of this court, she discovered typographical errors therein which have necessitated the instant application for amendment and /or review. That according to DEXB 1A & B, the 1st Defendant is entitled to a portion of land measuring 130ft x 145ft whereas the 2nd Defendant is entitled to a portion of land measuring 43ft x 108ft as per DEXB 2A & B. 5. It was averred that there exists sufficient cause to warrant an amendment of the judgment in view of the said errors which risk visiting immense suffering to the Applicant. She urged the court to allow the application as sought. 6. Opposing the application, the 1st – 3rd Respondents filed a replying affidavit sworn on their behalf by Mutinda King’oo Kilumo on 10th February, 2026. He averred that the judgment delivered by this court correctly captures the terms of the sale agreements between the Plaintiffs and the Defendants regarding the measurements of the land sold. The 1 st Respondent refuted the allegation that the parties negotiated the measurement of the land in feet as opposed to metres. It was his contention that the Applicant’s allegations are an afterthought. ELC NO. E021 OF 2021 2|Page

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7. The 1st Respondent averred that the court’s finding on the sizes of the respective portions of land is consistent with the parties’ occupation on the ground. It was contended that the Applicant has not demonstrated any error apparent on the face of the record to warrant a review under Section 80 of the Civil Procedure Act. It was further averred that the court may in its discretion enlarge the time within which the Defendants are to effect transfer from 30 days to 45 days to avoid any technical hardships but strictly without prejudicing the decree. 8. In a further affidavit sworn by the Applicant on 10 th March, 2026, she averred that parties are not only bound by their pleadings but also by the terms of their contracts. The Applicant further averred that even the portions being utilized by the 1st and 2nd Defendants are in terms of feet and not metres. Urging the court to enlarge the 30-days outlined in the judgment, the Applicant contended that the transfer of the Respondents’ respective portions entails many processes which require more time. 9. The application was canvassed by way of written submissions. 10.The Applicants filed their submissions dated 26 th March, 2026. On their behalf, Counsel contended that the Respondents are barred by the doctrine of estoppel from going against the sale agreements produced as Exhibits ‘MNN2a & b’ and ‘MNN3a & b’ which indicate that the respective portions are in terms of feet and which form part of the court record. Counsel further contended that the amendments sought would not distort the clear intention and the substance of the judgment. 11.On enlargement of time, Counsel argued that the 90-days period proposed by the Applicants constitutes ample time to precipitate a smooth land transfer process. That many processes are involved to wit booking of LCB consent for subdivision, subdivision, registration of mutation forms, booking of LCB consent for transfer, filing of transfer forms, valuation, payment of stamp duty ELC NO. E021 OF 2021 3|Page

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and processing of title deeds in the 1st and 2nd Respondents’ favour. Counsel urged the court to allow the application with costs. 12.In the 1st, 2nd and 3rd Respondents’ submissions dated 20th May, 2026, Counsel contended that if indeed there existed a mistranslation of the parties’ sale agreements and the respective English translations, nothing prevented the Applicants from raising the issue during the hearing of the case. Counsel submitted that the alleged mistranslation is not new evidence but rather an argument that is being raised after judgment because the Applicants are dissatisfied with the outcome. 13.Counsel was of the view that the Applicants are inviting the court into a factual inquiry regarding whether the measurements of the land were in footsteps, metres or feet and such an inquiry can never amount to an error apparent on the face of the record. It was contended that such an inquiry is in the province of an appellate court and not the court exercising review jurisdiction. Counsel further submitted that no evidence had been placed before this court to show that execution of the decree would occasion irreparable loss which is incapable of compensation. Urging the court to dismiss the application with costs, Counsel maintained that the Respondents are entitled to the fruits of the judgment. 14.The sole issue for determination is whether the Plaintiffs/Applicants have demonstrated merit in the application for review and amendment of the judgment of this court delivered on 21st October, 2025. 15.The legal provisions governing amendment of decrees and judgments are found at Sections 99 and 100 of the Civil Procedure Act. Section 100 provides as follows: ‘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 ELC NO. E021 OF 2021 4|Page

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determining the real question or issue raised by or depending on the proceeding.’ 16.In Outa v Okello & 3 others (Petition 6 of 2014) [2017] KESC 25 (KLR), the Supreme Court held as follows: “By its nature, the Slip Rule permits a Court of law to correct errors that are apparent on the face of the Judgment, Ruling, or Order of the Court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the Court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of the Court. In other words, the Slip Rule does not confer upon a Court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it. Indeed, as our comparative analysis of the approaches by other superior Courts demonstrates, this is the true import of the Slip Rule.” 17.The clear intention of the “Slip Rule” as the Supreme Court declared is to enhance the court’s inherent jurisdiction to ensure that justice is done in accordance with the laid down legal procedure. In Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints [2016] eKLR, the Court of Appeal held a similar view as follows: “Section 3A of the Civil Procedure Act appears to have been introduced to augment the provisions of section 3, vesting in the courts inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Of course, this power has now been broadened by the introduction in 2009 of overriding objective in sections 1A & 1B and in 2010 by Article 159 of the Constitution. ELC NO. E021 OF 2021 5|Page

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The extent of inherent powers of the court was eloquently explained by the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 as follows; “The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively, as a court of law… The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process … In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” See also Meshallum Waweru Wanguku (supra)” This inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be an injustice.” 18.It is the Applicants’ argument that paragraph 52 of the judgment which outlined the award of land to the 1st and 2nd Defendants in measurements of 130m x 145m and 43m x 108m respectively was erroneous. The Applicants contend that the units of length for the respective portions claimed ought to have been awarded in feet as opposed to metres. 19.A perusal of the 1st, 2nd and 3rd Defendants’ counterclaim dated 14th September, 2021 at paragraphs 1 and 2 shows that the counterclaim was pleaded in metres. ELC NO. E021 OF 2021 6|Page

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The said measurements were again reiterated by the 1st and 2nd Defendants in their witness statements dated 7th February, 2022 respectively. These were the same statements that were adopted by them in during their examination in chief as their sworn evidence. 20.In turn, the Plaintiffs filed an amended reply to defence and defence to counterclaim dated 26th January, 2024. Under paragraph 3A, they explicitly denied selling any part of the suit property LR No. NZAUI/IKANGAVYA/244 to the 1st, 2nd and 3rd Defendants. At the hearing of the suit, the Plaintiffs did not cross-examine the Defendants over the precise or actual sizes of land they claimed to have purchased. On their part, the 1st and 2nd Defendants propounded their claim on the portions of the suit property they occupy respectively. 21.It is therefore evident that the Plaintiffs wish to take a contradictory position on the award in terms of size of land which this court has unreservedly determined with absolute certainty. The same would amount to opening a new avenue of defence to the 1st and 2nd Defendants’ counterclaim when all the matters in controversy have been litigated and resolved. 22.I would adopt the position taken by the Court of Appeal in Muyodi v Industrial and Commercial Development Corporation and another [2006] 1 EA 243 where the learned judges decisively held as follows: “In Nyamogo and Nyamogo v Kogo [2001] EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be ELC NO. E021 OF 2021 7|Page

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made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” 23.If the application is allowed, it will substantively alter this court’s judgment as to call for fresh evidence and an injustice will be occasioned to the Respondents who are entitled to the fruits of their judgment. In the circumstances, the application herein is devoid of merited. It ought to be dismissed with costs. ................................................ HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 17TH SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Mukula for Applicant Mr. Munyasya for Respondents Court assistants – Kilonzo & Musyoki ELC NO. E021 OF 2021 8|Page

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