[2021] KEELC 3609 (KLR)
The court found, upon reviewing the exhibits and the record, that the correct land parcel in dispute was E. Bunyore/Ebusamia/2409, not West Bunyore/Ebusamia/2409 as erroneously cited in the judgment. The error was apparent on the face of the record and did not affect the substance of the dispute. The court held that...
Source-derived case information.
- Citation
- [2021] KEELC 3609 (KLR)
- Parties
- Applicant: Julius Amugune Okanda; Respondent: James Munandi Atsibilwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 15 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Rectify Judgment
- Outcome
- application allowed
- Judges
- NA Matheka
- Legal Topics
- Rectification of Judgment, Slip Rule, Land Parcel Identification, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Amugune Okanda
Applicant
James Munandi Atsibilwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Rectify Judgment
Legal Issues
- 1 Whether the court should rectify a typographical error in the judgment regarding the land parcel number.
- 2 Whether the rectification would prejudice the respondent or amount to an impermissible amendment of pleadings after judgment.
Ratio Decidendi
The court found, upon reviewing the exhibits and the record, that the correct land parcel in dispute was E. Bunyore/Ebusamia/2409, not West Bunyore/Ebusamia/2409 as erroneously cited in the judgment. The error was apparent on the face of the record and did not affect the substance of the dispute. The court held that it was in the interest of justice to rectify the judgment to reflect the correct parcel number, as the error was typographical and did not prejudice the respondent. The application for rectification was therefore merited and granted.
Court Disposition
application allowed
Orders
- The judgment is rectified to refer to land parcel E. Bunyore/Ebusamia/2409 instead of West Bunyore/Ebusamia/2409.
- The Vihiga County Police Commander is authorized to provide security for the execution of the rectified judgment during eviction of the defendant from L.P. E. Bunyore/Ebusamia/2409.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 15 OF 2016
JULIUS AMUGUNE OKANDA...........................................................PLAINTIFF/APPLICANT
VERSUS
JAMES MUNANDI ATSIBILWA................................................DEFENDANT/RESPONDENT
RULING
The application is dated 25th January 2021and seeks the following orders:-
1. That the court be pleased to rectify and/or correct an error on its judgment in terms of the parcel number from West Bunyore/Ebusamia/2409 to E. Bunyore/Ebusamia/2409.
2. That pursuant to grant of prayer (a) above, the court do authorize and/or order the Vihiga County Police Commander to provide security for the execution of the rectified judgment during eviction of the defendant from the L.P. E. Bunyore/Ebusamia/2409.
3. That the costs of this application be provided for.
It is based on the ground that this honourable court rendered its judgment in this matter on 23rd July, 2019, and on that judgment, there was an error and/or typing error in terms of the land parcel citation as West Bunyore/Ebusamia/2409 instead of E. Bunyore/Ebusamia/2409. That the court has powers under the law and its discretion to rectify the typing and/or topographical error under the slip rule. That the respondent will not suffer any prejudice with the granting of the orders sought. The court granted the defendant six (6) months to vacate from the suit land, which time has lapsed and it is only just that the County Commander, Vihiga County do ensure that security is provided during the eviction exercise.
That respondent submitted that essentially the pleadings by the p0laintiff referred to Land parcel No. West Bunyore/Ebusamia/2409. That in his evidence to court, the plaintiff referred to the suit land as West Bunyore/Ebusamia/2409. That the judgment delivered by court was premised on the pleading filed by the plaintiff in court and which the court correctly captured in the judgment by referring to Land Parcel No. West Bunyore/Ebusamia/2409. That no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. That the plaintiff application is an attempt to amend his pleading long after judgment has been delivered and which is a practice that is alien in law.
This court has considered the application and the submissions therein. It is a finding of fact that the court rendered its judgment in this matter on 23rd July, 2019, and on that judgment, the land parcel citation as West Bunyore/Ebusamia/2409 instead of E. Bunyore/Ebusamia/2409. I have perused the exhibits produced in this matter by both parties and it is clear that the suit land referred to was E. Bunyore/Ebusamia/2409 and not West Bunyore/Ebusamia/2409. I find that this is an era on the face of the record and in the interest of justice should be rectified. I find the application is merited and I grant the same with no orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 21ST APRIL 2021.
N.A. MATHEKA
JUDGE