[2005] KEHC 2850 (KLR)
The court found that while there was no error apparent on the face of the record warranting review under Order XLIV, the extracted order issued by the Deputy Registrar did not accurately reflect the judgment of the court. The judgment only declared the appellant as the legal owner of Plot No. 7B Kutus Township,...
Source-derived case information.
- Citation
- [2005] KEHC 2850 (KLR)
- Parties
- Appellant: Danson Kabate Njiru; Respondent: Simon Wanjohi Njiru; Applicant: Anthony Mugo Moris
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 18 of 1990
- Procedural Posture
- Civil Appeal / Ruling on Application for Review And/or Setting Aside Extracted Order
- Outcome
- Application allowed in part; extracted order set aside and substituted.
- Judges
- GG Okwengu
- Legal Topics
- Review of Orders, Extraction of Orders, Ownership of Land, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Danson Kabate Njiru
Appellant
Simon Wanjohi Njiru
Respondent
Anthony Mugo Moris
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Review And/or Setting Aside Extracted Order
Legal Issues
- 1 Whether the extracted order issued on 16th February 2001 accurately reflected the judgment delivered on 22nd September 1992.
- 2 Whether there was an error apparent on the face of the record warranting review under Order XLIV rules 1 and Section 3A of the Civil Procedure Act.
- 3 Whether the court should exercise its inherent jurisdiction to correct the extracted order to align with the judgment.
Ratio Decidendi
The court found that while there was no error apparent on the face of the record warranting review under Order XLIV, the extracted order issued by the Deputy Registrar did not accurately reflect the judgment of the court. The judgment only declared the appellant as the legal owner of Plot No. 7B Kutus Township, without specifying its proportion relative to the original plot. The addition of the words 'which comprises of 2/3 of original Plot 7 Kutus Township' in the extracted order was not supported by the judgment. To ensure the order aligns with the judgment and to prevent injustice, the court exercised its inherent jurisdiction under Section 3A of the Civil Procedure Act to set aside...
Court Disposition
Application allowed in part; extracted order set aside and substituted.
Orders
- The order extracted and issued by the Deputy Registrar on 16th February 2001 is set aside.
- A new order shall be issued in accordance with the judgment of the court, declaring the appellant as the legal owner of Plot No. 7B Kutus Township.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL 18 OF 1990
DANSON KABATE NJIRU………………………APPELLANT VERSUS
SIMON WANJOHI NJIRU……………….……………... RESPONDENT
AND
ANTHONY MUGO MORIS ……………………………… APPLICANT
R U L I N G
By a notice of motion dated 8th March 2001, Antony Mugo Moris, the applicant seeks orders to review and or set aside the orders issued on 16th February 2001 under order XLIV rules 1 and Section 3A of the Civil Procedure Act.
It is the applicant’s contention that the judgment does not correspond with the extracted order issued on the 16th February 2001. The applicant is aggrieved by the addition in the extracted order of the words “which comprises of 2/3 of original Plot 7 Kutus Township.”
The applicant further contends that the court having set aside the judgment in the Lower Court, it ought to have declared the applicant the rightful owner of plot No.7B Kutus Township measuring ½ the original Plot No.7 and not 2/3 as extracted.
I have perused the judgment of this court dated 22nd September 1992 and the extracted order dated 16th February 2001. The Judgment was very specific in its conclusion which is in the following terms:-
“I allow this appeal and set aside the orders of the learned trial Magistrate. It is ordered that the appellant is the legal owner of Plot No.7B Kutus township.”
In the body of the judgment it is stated that:-
“The record shows that the original Plot No.7 Kutus was sub-divided into two portions – 7A and 7B the latter being the portion purchased by the appellant. The grant confirmed by the Senior Resident Magistrate’s Court at Embu on 7/12/89 in favour of the Respondent was to subdivide the said plot in favour of Anthony Mugo who was to get 1/3 and Paul Ndungu Mwaura who was to get 2/3. ”
It is evident that the judgment of this court of 22nd September 1992 set aside the orders of the Senior Resident Magistrate which confirmed the grant as above stated. The effect of that judgment is that the appellant is the owner of Plot No.7B. This court’s judgment does not address the issue as to whether Plot No. 7B is 1/3, 2/3 or ½ the original plot. Indeed that was irrelevant in the judgment as the original plot No. 7 had already been sub-divided into plot No.7A and 7B and the appellant was adjudged the owner of Plot No.7B.
I find that there is no error apparent on the face of the record that warrants review. Nevertheless the extracted orders issued by the Deputy Registrar was not an accurate reflection of the judgment as the court did not state that plot No. 7B Kutus township comprised of 2/3 of the original plot No. 7 Kutus township. It is appropriate that this court exercise its inherent jurisdiction under section 3A of the Civil Procedure Act to correct this anomaly in order to meet the ends of justice and avoid abuse of the process of the court.
Accordingly I order that the order extracted and issued by the Deputy Registrar on 16th February 2001 shall be set aside and substituted with an appropriate order in accordance with the judgment of this court as aforestated i.e. that the appellant is the legal owner of Plot No. 7B Kutus Township.
Dated, signed and delivered this 11th day of May 2005.
H. M. OKWENGU
JUDGE