[2021] KEELC 174 (KLR)
The court found that the decree issued on 6.3.2020 failed to include a relief granted in the judgment delivered on 14.6.2018, specifically concerning Parcel No. 485. The omission was attributed to the failure of the defendants to provide a draft decree to the applicant for approval prior to endorsement, as required...
Source-derived case information.
- Citation
- [2021] KEELC 174 (KLR)
- Parties
- Plaintiff: Allosious Iriga; Defendant: Settlement Fund Trustees; Defendant: Chief Lands Registrar; Defendant: Lucy Kirumba M’mbijiwe; Defendant: Beth Muthoni Rukaria; Defendant: M’Rukaria M’Turuchiu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 ‘B’ of 1997
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Decree
- Outcome
- application allowed
- Legal Topics
- Amendment of Decree, Execution of Judgment, Procedural Errors, Land Parcel Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allosious Iriga
Plaintiff
Settlement Fund Trustees
Defendant
Chief Lands Registrar
Defendant
Lucy Kirumba M’mbijiwe
Defendant
Beth Muthoni Rukaria
Defendant
M’Rukaria M’Turuchiu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Decree
Legal Issues
- 1 Whether the court should recall and amend the decree to align it with the judgment delivered on 14.6.2018.
- 2 Whether the omission of relief regarding Parcel No. 485 in the decree constitutes an error correctable under Section 99 of the Civil Procedure Act.
- 3 Whether failure to send a draft decree to the applicant for approval before endorsement invalidates the decree.
Ratio Decidendi
The court found that the decree issued on 6.3.2020 failed to include a relief granted in the judgment delivered on 14.6.2018, specifically concerning Parcel No. 485. The omission was attributed to the failure of the defendants to provide a draft decree to the applicant for approval prior to endorsement, as required by the Civil Procedure Rules. The court held that under Section 99 of the Civil Procedure Act, it has the authority to amend a decree to correct such errors or omissions, provided the amendment does not alter the substance of the judgment. The court also noted that there was no opposition to the application and no prejudice would be occasioned by granting the amendment....
Court Disposition
application allowed
Orders
- The decree issued on 6.3.2020 is to be recalled and amended to align with the judgment delivered on 14.6.2018, specifically to include the relief regarding Parcel No. 485.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 32 ‘B’ OF 1997
ALLOSIOUS IRIGA...........................................................................................PLAINTIFF
VERSUS
SETTLEMENT FUND TRUSTEES.........................................................1ST DEFENDANT
CHIEF LANDS REGISTRAR.................................................................2ND DEFENDANT
LUCY KIRUMBA M’MBIJIWE.............................................................3RD DEFENDANT
BETH MUTHONI RUKARIA................................................................4TH DEFENDANT
M’RUKARIA M’TURUCHIU................................................................5TH DEFENDANT
RULING
1. By a chamber summons dated 9. 4.2021 the plaintiff seeks the court to recall and amend the decree issued on 6. 3.2020 to align it with the judgment delivered on 14. 6.2018.
2. The application is supported by an affidavit sworn on the even date by the applicant.
3. The grounds upon which the application are made are that the decree omitted part of the reliefs granted regarding Parcel No. 485 and that the 3rd, 4th and 5th respondents failed to prepare and send a draft for the applicant’s approval before it was signed by the court . As a result the applicant states he is unable to execute the decree in its present form.
4. With leave of court the applicant filed written submissions dated 24. 10. 2021. He relies on Order 21rule 8 (2) & (3) of Civil Procedure Rules and David Mutemi Ngumi –vs- Kamiii Packers Ltd [2019] eKLR citing Erad Suppliers General Contractors –vs- National Cereals & Produce Board [2012] eKLR Rand ECO Bank Ltd –vs- Elsek & Elsek (K) Ltd & 3 others [2015] eKLR.
5. There is no dispute that the judgment was read on 14. 6.2018. At the main hearing the parties relied on the plaintiff’s further amended plaint was filed on 28. 4.2015 and the 3rd, 4th and 5th defendants’ defence and counterclaim filed on 27. 9.2016 and 15. 10. 2012 respectively.
6. Looking at the judgment therefore the court allowed prayers a, b, c, d and e of the further amended plaint dated 24. 8.2015.
7. Under Section 99 of the Civil Procedure Act the court has powers to amend a decree and correct an apparent error.
8. The applicant states the decree left out a relief which was granted by the court over Parcel No. 485. He submits this was occasioned by the failure by the defendants to send a draft decree to him for approval before it was endorsed by the court. The respondents have not opposed the application.
9. Order 21 rules 7 and 8 of the Civil Procedure Rules deals with a draft decree. In this case the decree has already been extracted and signed.
10. Be that as it may, in Wilson Njiiri Gikonyo –vs- Simon Kimamo & 7 Others [2006] eKLRthe court in circumstances similar circumstances citing Halsburys Laws of English 4th Edition Vol 26, 596 held the court has inherent jurisdiction to vary or clarify an order so as to carry out the court’s meaning so long as it does not change the substance of the judgment.
11. Even though judgment was delivered in 2018, the decree was issued on 6. 3.2020 hence it cannot be said there has been inordinate delay in seeking for the review. Likewise I find no prejudice occasioned by the failure to bring the application under Order 45 and Section 99 of the Civil Procedure Act.
12. Accordingly I allow the application in terms of prayer No 2 with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 15TH DAY OF DECEMBER, 2021
In presence of:
Mwirigi Kaburu holding brief Mwanzia for plaintiff/applicant
Kieti for 1st and 2nd defendant
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE