[2019] KEELC 3210 (KLR)
The court found that there was a clear and undisputed error on the face of the record, as the defendant's name was incorrectly stated in the application for substituted service. The error was a result of a slip of the pen and was discovered before any prejudice could occur to the defendant, as service by...
Source-derived case information.
- Citation
- [2019] KEELC 3210 (KLR)
- Parties
- Plaintiff: James Mutugi Mwithi; Defendant: Dedan Mugo Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 01 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Court Order
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Review of Court Orders, Error on Face of Record, Substituted Service, Naming of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Mutugi Mwithi
Plaintiff
Dedan Mugo Mwangi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Court Order
Legal Issues
- 1 Whether there is an error apparent on the face of the record regarding the naming of the defendant.
- 2 Whether the court should review its order of 8th April, 2019 to correct the defendant's name from Daniel Mugo Mwangi to Dedan Mugo Mwangi.
- 3 Whether any prejudice would be caused to the defendant by granting the review.
Ratio Decidendi
The court found that there was a clear and undisputed error on the face of the record, as the defendant's name was incorrectly stated in the application for substituted service. The error was a result of a slip of the pen and was discovered before any prejudice could occur to the defendant, as service by advertisement had not yet been effected. The application for review was made promptly and without unreasonable delay. In the interest of justice and to ensure the accuracy of court records, the court allowed the application and ordered that the defendant's name be correctly stated as Dedan Mugo Mwangi in the relevant order.
Court Disposition
application allowed
Orders
- The plaintiff is allowed to name the defendant as Dedan Mugo Mwangi in place of Daniel Mugo Mwangi in the order of 8th April, 2019.
- Costs of the application to be costs in the cause.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 01 OF 2019 (OS) (FAST TRACK)
IN THE MATTER OF LAND PARCEL NUMBER SOUTH THARAKA/TUNYA “A”/390
AND
IN THE MATTER OF SECTIONS 7, 37 AND 38 OF THE LIMITATION OF ACTIONS ACT AND ORDER 37 RULE 8 OF THE CIVIL PROCEDURE RULES
BETWEEN
JAMES MUTUGI MWITHI..........PLAINTIFF
VERSUS
DEDAN MUGO MWANGI......DEFENDANT
RULING
1. This application is dated 17th May, 2019 and seeks orders:
1. That this honourable court be pleased to review its orders issued on 8th April, 2019.
2. That the costs of this application be costs in the cause.
2. The application has the following grounds:
1. There is an error apparent on the face of the record in that the parties in the main suit are James Mutugi Mwithi versus Dedan Mugo Mwangi whereas in the application, the subject of the order sought to be reviewed, the parties are James Mutugi Mwithi versus Daniel Mugo Mwangi.
2. There was a mistake in naming the defendant as Daniel Mugo Mwangi instead of Dedan Mugo Mwangi.
3. There will not be any prejudice caused to the defendant because the order sought to be reviewed has not been extracted or service effected by way of advertisement in the Nation Newspapers as ordered.
4. The error or mistake was discovered when it was sought to extract the order for advertisement.
5. The application for the review has been made without unreasonable delay.
3. It is supported by the affidavit of Mr Stephen Kaai which states:
I Stephen Kaai, of care of Post Office Box Number 73104-00200 Nairobi in the Republic of Kenya make oath and state as follows:-
1. That my name is Stephen Kaai and I am the deponent herein.
2. That I am an advocate of the High Court of Kenya having the conduct of this suit on behalf of the plaintiff.
3. That I am fully conversant with the matters in issue in this suit and therefore competent to make this affidavit in support of the application herein.
4. That the pleadings in the Originating Summons by the plaintiff name the defendant as Dedan Mugo Mwangi, but when the application for leave to serve the Originating Summons by substituted service was drawn my firm erroneously named the defendant as Daniel Mugo Mwangi.
5. That the error or mistake was detected by me when I called at the registry on 7th May, 2019 to apply for the extraction of the order given herein on 4th May, 2019.
6. That I needed the order to enable me advertise for service in the Nation Newspaper.
7. That the error or mistake in the naming of the defendant wrongly was caused by the slip of the pen.
8. That there is certainly an error on the face of the record because the Originating Summons and the interlocutory application bear different defendant.
9. That as the service on the defendant by the advertisement has not been effected no prejudice will be caused on the defendant.
10. That in the interest of justice it is fair and just that the order of 8th April, 2019 be reviewed to name Dedan where it reads Daniel.
11. That this application has been made without undue delay.
12. That I make this affidavit the facts deponed to herein being true to the best of my knowledge and belief.
4. When the application was heard on 27th May, 2019, advocate Kaai Mugambi told the court that he relied on his pleadings and asked the court to grant the prayers sought.
5. I find that the application has merit. The plaintiff is allowed to name the defendant as Dedan Mugo Mwangi.
6. It is so ordered.
Delivered in open Court at Chuka this 27th day of May, 2019 in the presence of:
CA: Ndegwa
Stephen Kaai Mugambi for the Plaintiff
P.M. NJOROGE
JUDGE