[2018] KEELC 1279 (KLR)
The court found that since the suit in the lower court was withdrawn on 20th December 2017 and had not been reinstated, it lacked jurisdiction to rectify or amend orders from that withdrawn file. The application for rectification was therefore without merit and was dismissed with costs to the respondent.
Source-derived case information.
- Citation
- [2018] KEELC 1279 (KLR)
- Parties
- Applicant: Mark David Makokha; Applicant: Francis Tumbo; Applicant: Micah Lumire; Respondent: Philip Barasa Wanangwe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 61 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Rectification of Order
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Rectification of Orders, Mistake in Court Orders, Land Title Description, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark David Makokha
Applicant
Francis Tumbo
Applicant
Micah Lumire
Applicant
Philip Barasa Wanangwe
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Rectification of Order
Legal Issues
- 1 Whether the court can rectify an order from a lower court file that was withdrawn.
- 2 Whether the description of the land in the previous order was a mistake warranting rectification.
Ratio Decidendi
The court found that since the suit in the lower court was withdrawn on 20th December 2017 and had not been reinstated, it lacked jurisdiction to rectify or amend orders from that withdrawn file. The application for rectification was therefore without merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for rectification of the order is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 61 OF 2018
MARK DAVID MAKOKHA
FRANCIS TUMBO
MICHAH LUMIRE..........................................PLAINTIFFS/APPLICANTS
VERSUS
PHILIP BARASA WANANGWE...............DEFENDANT/ RESPONDENT
RULING
The application is dated 30th July 2018 and is brought under section 3, 3a and 100 of the Civil Procedure Act and order 45 Rule I of the Civil Procedure Rules 2010 seeking the following orders;
1. That order granted on 21st December, 2017 be rectified.
2. That costs be in cause.
It is premised upon the following grounds, that this court issued orders on 21st December, 2017. That order No. 2 therein indicated the land in question as BUNGOMA/NDALU/5753. That but the land in question is LR NO. 5753. That this titling process is at an advance stage.
This court has considered the application. The respondent was served but did not oppose the application. The applicant submitted that the suit land in question involved land known as LR. NO. 5753. That the orders granted referred to Land Known as BUNGOMA/NDALU/5753. That this was a mistake. That they now pray for rectification of the order to read LR. NO. 5753. This was a lower court matter which was transferred to this court. It is on record that the suit was withdrawn on the 20th December 2017 in the lower court. The same has not been reinstated and this court cannot rectify orders of a lower court file which was withdrawn. I find this application has no merit and I dismiss the same with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 23RD DAY OF OCTOBER 2018.
N.A. MATHEKA
JUDGE