[2017] KEHC 5727 (KLR)
The court found that its ruling delivered on 22nd July 2016 contained typographical errors, which are correctable under Sections 99 and 100 of the Civil Procedure Act. The court held that it retains jurisdiction to correct such errors even after an appeal has been filed, as the doctrine of functus officio does not...
Source-derived case information.
- Citation
- [2017] KEHC 5727 (KLR)
- Parties
- Plaintiff: Godfrey Simiyu; Plaintiff: Mattew Kaburu; Plaintiff: Kobia Michubu; Plaintiff: Charles Kinoti; Defendant: Rev. Joseph Ntombura; Defendant: Methodist Church in Kenya Trustees Registered
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 360 of 2015
- Procedural Posture
- Civil Case / Ruling on Motion to Expunge Extracted Orders and Correct Typographical Errors
- Outcome
- Defendant's motion partially allowed; court corrects its ruling to clarify allowed prayers; each party to bear own costs.
- Judges
- JK Sergon
- Legal Topics
- Correction of Errors, Functus Officio, Extraction of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Simiyu
Plaintiff
Mattew Kaburu
Plaintiff
Kobia Michubu
Plaintiff
Charles Kinoti
Plaintiff
Rev. Joseph Ntombura
Defendant
Methodist Church in Kenya Trustees Registered
Defendant
Procedural Posture
Civil Case / Ruling on Motion to Expunge Extracted Orders and Correct Typographical Errors
Legal Issues
- 1 Whether the extracted orders dated 26.7.2016 and 27.7.2016 should be expunged from the record for not conforming to the application and ruling.
- 2 Whether the court is functus officio after an appeal has been filed against the ruling.
- 3 Whether the court can correct typographical errors in its ruling under Sections 99 and 100 of the Civil Procedure Act.
Ratio Decidendi
The court found that its ruling delivered on 22nd July 2016 contained typographical errors, which are correctable under Sections 99 and 100 of the Civil Procedure Act. The court held that it retains jurisdiction to correct such errors even after an appeal has been filed, as the doctrine of functus officio does not apply to the correction of clerical or typographical mistakes. The court exercised its inherent power to clarify that it intended to allow prayers 2, 3, and 10 of the motion dated 14th October 2015, thereby correcting the confusion created by the erroneous extraction of orders. Each party was ordered to bear its own costs.
Court Disposition
Defendant's motion partially allowed; court corrects its ruling to clarify allowed prayers; each party to bear own costs.
Orders
- The court corrects its ruling to state that prayers 2, 3, and 10 of the motion dated 14.10.2015 are allowed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 360 OF 2015
GODFREY SIMIYU...............................................1ST PLAINTIFF/RESPONDENT
MATTEW KABURU........................................... 2ND PLAINTIFF/RESPONDENT
KOBIA MICHUBU............................................... 3RD PLAINTIFF/RESPONDENT
CHARLES KINOTI ............................................. 4TH PLAINTIFF/RESPONDENT
- V E R S U S –
REV. JOSEPH NTOMBURA ............................................................DEFENDANT
METHODIST CHURCH IN KENYA TRUSTEES
REGISTERED .............................. PROPOSED 2ND DEFENDANT/APPLICANT
RULING
1. Rev. Josepeh Ntombura, the defendant herein, took out the motion dated 28th November 2016 in which he sought for interalia that order the extracted on 26. 7.2016 and 27. 7.2016 be expunged from the record since it was not extracted in terms of the application dated 14. 10. 2015 and the ruling of this court delivered on 22. 7.2016. The motion is supported by the affidavit sworn by the defendant/applicant. When served, the plaintiffs/ Respondents vigorously opposed the motion. When the motion came up for interpartes hearing this court gave directions to have the application disposed of by written submissions.
2. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have also considered the rival written submissions. It is argued that the plaintiffs/respondents extracted an order which stated that the defendant/applicant is restrained from holding the office of the presiding Bishop of the Methodist Church in Kenya pending the hearing and determination of suit yet there was no such prayer in prayer 1 of the motion dated 14. 10. 2015. This court was urged to correct the confusion created by the ruling by expunging the extracted orders from court records. It is also pointed out that this court stated that prayer 3 is spent.
3. The plaintiffs urged this court to dismiss the defendant’s application arguing that the defendant has already filed an appeal against the aforesaid ruling hence this court is functus officio.
4. Having considered the errors pointed out by the defendant, it is apparent that this court’s ruling delivered on 22nd July 2016 contained some typographical errors. Those errors are the sort of errors envisaged under Sections 99 and 100 of the Civil Procedure Act.
5. The court in such circumstances can suo moto order for the same to be corrected without being regarded as funtus officio. In exercise of this courts inherent power under the aforesaid provisions, this court moves to correct the confusion created by the aforesaid error by that stating this court meant to allow prayers 2, 3 and 10 of the motion dated 14. 10. 2015. Therefore the defendant’s motion dated 28. 11. 2016 to the extend proposed herein with each party bearing its own costs.
Dated, Signed and Delivered in open court this 10th day of April, 2017.
J. K. SERGON
JUDGE
In the presence of:
.................................... for the Applicant
..................................... for the Respondent