[2023] KEHC 24745 (KLR)

Chesire v Gioche (Civil Appeal 50 of 2016) [2023] KEHC 24745 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24745 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 50 of 2016

SM Mohochi, J

November 6, 2023

Between

Wilson Kamoty Chesire

Applicant

and

Joseph Kamande Gioche

Respondent

(Being an Application to Amend the Judgment Delivered by Hon Lady Justice R. Ngetich on 14th October 2021)

Ruling

1. Before this Court is a Notice of Motion Application dated 24th April 2023 filed pursuant to Section(s) 1A, 1B. 34, 99 and 100 of the Civil Procedure Act, and order 51 rule 1 of the Civil Procedure Rules and is supported by the Sworn Affidavit of Kipkoech B Ngetich dated on even date. The Applicant is seeking the following reliefs:i.Spentii.That the Honourable court be pleased to amend the judgment delivered in this matter by Hon Rachel Ng'etich on 14th October 2021, to read that the cost of the lower court and appeal to be paid by the Respondent to the Appellant.iii.That the cost of this application be in the cause.

2. The Application is premised on the following grounds;i.That, Judgment was delivered in this matter by Hon. Rachel Ng'etich on the 14th October, 2021ii.That, the final orders of the judgment, particularly order No. 3 does not conform to the findings in the judgment.iii.That, the said order states that cost of the lower court and appeal to be paid by the Appellant to the Respondent, yet the court held that the appeal was merited as prayed under paragraph 26 of the judgment.iv.That, cost of the lower court and court of appeal ought to be paid by the Respondent to the Appellant, in line with the findings of paragraph 26 of the judgement of the appeal.v.That, section 99 of the Civil Procedure Act, provides that 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.vi.That, the error herein is typing error or an accidental slip which the court can rectify on its own motion or on the application of any of the parties in accordance with section 99 of the Civil Procedure Act.vii.That, the said error has stalled execution and issuance of certificate of costs in the matter, deterring the Appellant from enjoying the fruits of the judgement.

3. That, the Judgment of the Court in Appeal was in favor of the Applicant against the Respondent but with a contradictory Order as to costs which awarded costs to the Respondent contrary to the age-old rule that costs follow the event.

4. That, the Application is thus made to correct the accidental slip and for the final orders to reflect the intention of the judgment as a whole.

5. The Application is opposed by the Respondent vide a Replying Affidavit dated 10th July 2023, contending that, the Applicant is in a feeble attempt to get orders from this court, instead of following the laid down procedure, The Respondent contends that the Applicant ought to have moved the court only by way of review as is provided for under Order 45 of the Civil Procedure Rules.

6. In a nutshell and troubling fashion, the Applicant alleges that the Judgment has an error apparent, which is an accidental slip and that the intention of the judge was to a contrary position and thus proposed an amendment.

7. This court had issued interim directions on the 16th May 2023 and on the 21st July 2023 the Court gave directions on the disposal of the Application by way of filed written submissions of which the Applicant had already complied.

Applicants case 8. The Applicant canvasses his Application by framing a single issue as “Whether the judgment delivered on the 14th October, 2021 can be amended and/or rectified

9. The Applicant submits that, Sections 99 and 100 of the Civil Procedure Code CAP21 provide for the powers of the court to amend judgment, decrees or orders and general powers to amend as follows;“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.”

10. Reliance is placed on the case of Nguruman Limited Vs Attorney General & another [2021] eKLR where the court while dealing with a similar issue held as follows;The Court of Appeal examined the mechanics of the application of Section 99 of the Civil Procedure Act in the case of Republic Vs Atorney General & 15 others, Ex-Parte Kenya Seed Company Limited s ofhers [2010] eKLR, stating as follows-27. It is a codification of the common law doctrine dubbed the 'Slip Rule', the history and application of which has a wealth of authorities both locally and from common Law jurisdictions. It is a rule that applies as part of the inherent jurisdiction of the court which would otherwise become functus officio upon issuing a judgment or order, to grant the power to reopen the case but only for the limited purposes stated in the section.28. Some of the applications of the rule are fairly obvious and common place and are easily discernible like clerical errors, arithmetical mistakes, calculations of interest, wrong figures or dates. Each case will, of course, depend on its own facts, but the rule will also apply where the correction of the slip is to give effect to the actual intention of the Judge and or ensure that the judgment/order does not have a consequence which the Judge intended to avoid adjudicating on.

11. That, the Courts have set out guidelines which govern the circumstances under which the exercise of the jurisdiction to correct clerical or arithmetical mistakes in judgments, decrees or orders is made. The court in Nguruman Limited y Attorney General & Another 2021| eKLR the court was guided by the holding In Vallabhdas Karsandas Kaniga Vs. Mansukhlal Jivraj and Others [1965] EA 780, where the East African Court of Appeal held:Section 3(2) of the Appellate Jurisdiction Act confers on the Court of Appeal the same jurisdiction to amend judgments, decrees and orders that the High Court has under section 99 of the Civil Procedure Act, making it unnecessary to look to the inherent powers of the court. The words at any time" in section 99 clearly allow the Power of amendment to be exercised after the issue of a formal order..."Slip orders" made to rectify omissions resulting from the failure of counsel to ask for costs and other matters to which their clients are entitled.....A court will only apply the slip rules where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention. In the present case, if the facts had been before the court when judgment was given on appeal, the court would, on application or indeed of its own motion, have made the order for refund, now sought, which was necessarily consequential on the decision on the main issues. "The court further held:It is my considered view that the errors alleged, are clerical error owing to an accidental slip which if corrected, would not affect the substance of the judgment. The intention of this Court was to grant the Petitioner/ Applicant compensation equivalent to the value of the subject land as captured in the unchallenged valuation report filed by the Petitioner.

12. Guided by the law and precedents herein, the Applicant submits that, the intention of the judgment of the court is clear as espoused verbatim in paragraph 26 of the said judgment. The Honourable judge found that the appeal is merited and allowed the same.

13. That the prayers in the Applicant's appeal, as outlined in paragraph 1 (d) of the judgment included costs of the suit and given that, the court found the appeal was merited and allowed the same, the intention of the court was that the Appellant be entitled to cost to be borne by the Respondent.

14. The Applicant submits that, the mistake in the final orders of the judgment is a slip as defined by section 99 and 100 of the Civil Procedure Act, and this court has inherent jurisdiction to correct the same so that the intention of the judgment is upheld.

15. The Applicant therefore humbly submits that, the amendment sought will not change the subject matter of the judgment but shall uphold the intention of the judgment of the court, which allowed the appeal in his favor.

16. The Applicant thus prays that his Application be allowed and the judgment be amended accordingly

Respondent’s submissions 17. The Application is opposed by the Respondent vide a Replying Affidavit dated 10th July 2023, contending that, the Applicant is in a feeble attempt to get orders from this court, instead of following the laid down procedure, The Respondent contends that the Applicant ought to have moved the court only by way of review as is provided for under Order 45 of the Civil Procedure Rules.

18. The Respondent has refined the issues as, whether the application has merit? And Whether costs should issue?

19. As to whether the Application has merit it is submitted that,is misconceived. inept and made-up of half-truths and is a mere attempt by the Applicant herein to unjustly get reliefs orders from this honorable court. The Applicant filed an application before this Court hoping that he would circumvent the rules of the Court so that he could get unwarranted orders.

20. The Respondent further submitted that, the Courts have set out guidelines which govern the circumstances under which the exercise of the jurisdiction to correct clerical or arithmetical mistakes in judgments, decrees or orders is made pursuant to Section 99 of the Civil Procedure Code.

21. It was the Respondent’s submission that In the case of Patrick Kilonzo Vs Teachers Service Commission [2015] eKLR the Court quoted Vallabhdas Karsandas Raniga Vs. Mansukhlal Jivraj and Others [1965] EA 780, where the East African Court of Appeal held:“Section 3(2) of the Appellate Jurisdiction Act confers on the Court of Appeal the same jurisdiction to amend judgments, decrees and orders that the High Court has under section 99 of the Civil Procedure Act, making it unnecessary to look to the inherent powers of the court. The words "at any time" in section 99 clearly allow the power of amendment to be exercised after the issue sf a formal order...."Slip orders" are made to rectify omissions resulting from the failure of counsel to ask for costs and other matters to which their clients are entitled. A court will only apply the slip rules where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention.

22. Order 45 rule 1 of the Civil Procedure Rules, 2010 provides as follows:“Rule 1 (1) Any person considering himself aggrieved-(a)By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay."

23. That, taking this into account, the Respondent further submitted that this Application lacks merit and is an abuse of the Court process. Amendments are done when there are slip errors or clerical errors and that it was neither an error, Slip or otherwise.

24. That the Applicant filed the Application in bad faith arguing that the errors were merely Clerical/typographical. That it is important to note that what the Appellant is terming as mere Typographical error could alter the judgment and the orders made therein.

25. That the Rules are very clear that on the procedure to follow if a person is aggrieved with a judgement or believes that there was an error in the Judgement.

26. That in the case of Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR the Court while discussing what constitutes an error on the face of the record, the court rendered itself as follows: -“In Attorney General & O'rs v Boniface Byanyima, [8] the court citing Levi Outa Vs Uganda Transport Company, [9] held that the expression "mistake or error apparent on the face of record" refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment"

27. The Respondent relies on the case of Hosea Nyandika Mosagwe & 2 others Vs County Government of Nyamira [2022] Ekir the Court observed that in Ajit Kumar Rath Vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608 while discussing the scope of review, the Supreme Court of India in the case of had this to say: -“the power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can he exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression "any other sufficient reason"…………means a reason sufficiently analogous to those specified in the rule"

28. That, if the Applicants firmly believe that the award of costs was indeed an error, they should apply for review of the judgment. The repercussions of the altered judgment to the Respondent show that the judgment cannot just be amended as it would change the intention of the judgment entirely.

29. It is the Respondent submission, that in the circumstances, it is clear that the present application is incompetent, defeatist, bad in law and untenable and the same ought to be dismissed for lack of competency and merit with costs to the Respondent herein.

b.Whether costs should issue? 30. The Respondent submit that, court should exercise its discretion and direct that the Applicant bear the costs of this suit. We rely on section 27 of the Civil Procedure Act which provides,(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid: and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:(2)Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.

Analysis and determination 31. I have carefully considered the Notice of Motion Application dated 24th April 2023, the Supporting Affidavit of Kipkoech B Ngetich dated on even date, the Respondent’s Replying Affidavit dated 10th July 2023, the Written Submissions in support and Written Submissions in opposition, and the cited authorities leading me to the conclusion that the only issue for determination is “Whether the judgment delivered on the 14th October, 2021 has errors arising therein from any accidental slip or omission that can be amended and/or rectified?

32. This Court is equally conscious and on the lookout for an evident error which does not require extraneous matter to show its incorrectness. In this regard the Applicant suggests and alludes that the judgment delivered by Hon Rachel Ng'etich on 14th October 2021 particularly her Order 3 as to costs which reads “Costs of the Lower Court and Appeal to be paid by the Appellant to the Respondent” which the Applicant seeks to be amended to read “Cost of the Lower Court and Appeal to be paid by the Respondent to the Appellant”.

33. This Court is guided by the case Fredrick Otieno Outa vs. Jared Odoyo Okello & 3 Others [2017] eKLR where the Supreme Court held inter alia that;“the “slip rule” does not confer upon a court any jurisdiction to sit on appeal over its own judgment or to extensively review such judgment as to substantially alter it. It was further held in that case in respect of Section 21 (4) of the Supreme Court Act that corrections made become part of the judgment or order as initially rendered and that the purpose of the said section was to steer a judgment, decision or order of the Supreme Court towards logical or clerical perfection”.

34. A determination as to whether Order 3 of the Judgment conforms to the findings in the judgment and the fleshing out of the intention of the court that, the Appellant be entitled to cost to be borne by the Respondent to me is an elaborate exercise that would amount to a review under Order 45 of the Civil Procedure Rules and not the correction envisioned under Sections 99 and 100 of the Civil Procedure Code

35. A determination as to whether the Judgment has an error apparent, which is an accidental slip and that the intention of the judge was to a contrary position and thus proposed an amendment would equally entail a review under Order 45 of the Civil Procedure Rules and not the correction envisioned under Sections 99 and 100 of the Civil Procedure Code.

36. In conclusion,my plain reading of Order 3 does not in any way exhibit incorrectness, manifest error(s), the Applicant has failed to satisfy this court that the error complained of, (if indeed it is an error) is such as would be properly described as an error apparent on the face of the record.

37. The fact that, the Application to amend was filed one year and six months after judgment was delivered and that since delivery of judgment, the Applicant has actively participated in taxation proceedings before the taxing master culminating to the ruling on taxation delivered on 7th June 2023. The conceding and participating in the aforesaid taxation by the Applicant is indicative of his belated desire to overturn an execution process he has religiously participated in and that his belated realization of the alleged error is with malafide.

38. Thus, even if I were wrong on the question as to whether the error complained about could be properly described as an error apparent on the face of the record, I would still conclude that, I would be unable to Amend the Judgment because of the inordinate delay in bringing the application and the fact the parties had embarked on enforcing the whole of the judgment without contesting the same on appeal or review.

39. The Applicant did not disclose his participation in the concluded execution of judgment and taxation proceedings, in the instant Application.

40. I have therefore come to the inescapable conclusion that the Application dated 24th April 2023 lacks merit and is hereby dismissed. However, whilst costs ordinarily follow the event, I am inclined to order each party to bear their own costs. Reason being, that although the application has been dismissed this court is of the view that a review of the judgment had a potential of achieving the applicants desired outcome but he slept on his rights, the most reasonable order that commends itself to me in this matter is that each party should bear their own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 6TH DAY OF NOVEMBER 2023. MOHOCHI S.M.Judge of the High Court.In the presence of:-Miss Olili for ApplicantMiss Karanja for Respondent