https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5024

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC APPEAL NO. E023 OF 2025** SIPRINA ADOYO & PAUL ODHIAMBO MIDENY As the legal administrators of the estate of PATRICK MIDENYI ORWA-DECEASED..............................APPELLANT **VERSUS** PAULVET OKEYO ODOYO........................................... 1ST RESPONDENT JAMES ODONGO OLEL.................................................2ND RESPONDENT THE HONOURABLE ATTORNEY GENERAL...........3RD RESPONDENT **JUDGEMENT** (Being an appeal from the order/ruling of Honourable Martha Agutu, PM delivered on 22nd May 2025 in Mbita Principal Magistrate’s Court ELC No. 2 of 2019) 1. Before this Court is an Amended Memorandum of Appeal dated 9th October 2025. The amended was pursuant to leave granted on 5th May 2026. The said amended memorandum of appeal raises 15 grounds of appeal, that the learned trial magistrate erred in law and fact; 2. By misinterpreting the powers of the court under the slip rule and therefore allowed for amendment of decree that had no errors. 3. By allowing prayers that were never sought for in the original plaint and were not part of the proceeding. 4. By failing to find that the decree which had been issued by the court was in line with the prayers which were sought by the 1st respondent and the evidence that was adduced in court. 5. By failing to find that the claim for 10.70 hectares by the 1st respondent was something new that came out only during the survey and was not part of the prayers in court or the proceedings in the original plaint. 6. By failing to find that the decree from court was very specific as to the 1st respondent prayers in court and that is what was granted by the court. 7. By making a finding that the judgment of the court could not be implemented due to discrepancies when there were no such discrepancy and that the judgment had been implemented except for the new demands by the 1st respondent. 8. By failing to find that the surveyor reported that the decree of the court was implemented but due to thick bush only corner beacon marks were placed. 9. By failing to find that the order for resurveying and amendments of the varying land records cannot be done by way of amendment of the decree since they were not prayers sought in the plaint or determined by the court. 10. By failing to find that the prayers to survey the appellant land parcel number Kasagunga/Kamreri/3848 and excise 11.3 hectares and awarding the remaining to the 1st respondent was not part of the prayers in the original plaint and was never determined in court and therefore could not be granted by way of amendment of a decree. 11. By failing to find that the issues which were raised by the 1st respondent during the survey could not be addressed by way of amendment of decree but only through application for review or filing of afresh suit as he had been advised by the surveyor and the land registrar. 12. By failing to find to find that it was functus officio in the matter and therefore did not have jurisdiction to grant the prayers sought by the 1st respondent. 13. By considering extraneous factors hence arriving at the wrong decision. 14. By failing to consider the evidence and submissions of the of the appellant thereby arriving at the wrong decision. 15. By making a decision that is against the known principle of law. 16. Therefore, the appellant prayed that; 17. The ruling and order of the trial court delivered on 22nd May 2025 in Mbita Principal Magistrate’s court ELC case No. 2 of 2019 be set aside and substituted with an order dismissing application dated 14th November 2024 with costs to the appellant. 18. Costs for this appeal be awarded to the appellant. 19. The appeal was disposed of by way of written submissions, which this Court has duly considered. 20. The 1st Respondent submitted that the suit was heard and determined on the basis of the pleadings, culminating in a judgment that granted the reliefs sought in the plaint. Pursuant to the decree, the Appellant was ordered to vacate the suit property, while the County Surveyor was tasked with confirming the acreage reflected in the title. It was contended that during the implementation of the decree, the Surveyor discovered anomalies that rendered the decree incapable of implementation in its existing form. Consequently, both the Land Registrar and the Surveyor advised the 1st Respondent to move the trial court for amendment of the decree on the basis that it contained an error requiring rectification. 21. The Appellant, on the other hand, submitted that the Notice of Motion dated 14th November 2024 sought substantive orders beyond the scope of Section 99 of the Civil Procedure Act. In particular, the application sought amendment of the judgment and decree to align them with the evidence adduced at trial and the findings contained in the reports of the Land Registrar and County Surveyor dated 8th November 2024 and 12th November 2024, respectively. The application further sought an order directing the Surveyor to undertake measurements to ascertain and excise the portion measuring 11.30 hectares allegedly awarded to Ernest Ongalo Owino in the Appeal to the Minister under the Land Adjudication Act, with the same to be transferred to the purchaser, who was the Plaintiff/Applicant. The Appellant pointed out that the application was premised on Sections 1A, 1B, 3, 3A and 99 of the Civil Procedure Act. 22. The Appellant further submitted that paragraph 5 of the 1st Respondent's supporting affidavit, appearing at page 9 of the Record of Appeal, expressly acknowledged discrepancies in the acreage of Land Parcel No. Kasgunga/Kamreri/5393, which, according to the deponent, could only be addressed through rectification of the land register. It was argued that no such order had been made in the judgment or decree. The Appellant maintained that the alleged errors identified during the implementation process were neither clerical nor accidental errors contemplated under Section 99 of the Civil Procedure Act and, therefore, could not lawfully be corrected by way of amendment of the decree. 23. With regard to the second limb of the application, the Appellant submitted that the claim to an additional 8.09 hectares only emerged during the survey exercise and did not form part of the pleadings, evidence, or the judgment delivered on 7th June 2023. It was therefore contended that the orders sought amounted to the introduction of new substantive claims which could not properly be granted under the guise of amending the decree. 24. Finally, the Appellant submitted that upon delivery of its judgment, the trial court became **functus officio** and was consequently divested of jurisdiction to entertain the application dated 14th November 2024. It was argued that by granting the orders sought, the learned trial magistrate effectively reopened the dispute and afforded the 1st Respondent an opportunity to litigate issues that had neither been pleaded nor determined in the judgment, thereby exceeding the court's jurisdiction. 25. Having carefully considered the amended memorandum of appeal, the record of appeal, the ruling of the trial court, and the parties' respective submissions, it is evident that although the appeal is framed under numerous grounds, the grounds substantially converge into two broad issues. The Court is guided by the principle that it should determine the real controversy between the parties rather than address each ground of appeal in isolation. 26. Accordingly, the issues falling for determination are: 27. Whether the learned trial magistrate erred in invoking Section 99 of the Civil Procedure Act to amend the judgment and decree. 28. Whether the learned trial magistrate became functus officio and consequently lacked jurisdiction to grant the orders sought. 29. On the first issue, the impugned ruling arose from the Notice of Motion dated 14th November 2024 in which the 1st Respondent sought amendment of the judgment and decree so as to align them with the reports of the Land Registrar and County Surveyor prepared during the execution of the decree. The application was principally brought under Section 99 of the Civil Procedure Act. 30. Section 99 of the Civil Procedure Act provides that: *"Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties."* 1. The scope of the jurisdiction donated by Section 99 has been authoritatively settled by the Court of Appeal. In **Republic v Attorney General & 15 Others Ex Parte Kenya Seed Company Ltd & 5 Others**, the Court held that Section 99 is a codification of the common law "slip rule", whose purpose is limited to correcting clerical or arithmetical mistakes and accidental slips or omissions. The Court emphasized that the provision does not confer jurisdiction upon a court to reopen a case or alter the substance of its judgment under the guise of correcting an accidental error. 2. The court under paragraph 28 states that “***Some of the applications of the rule are fairly obvious and common place and are easily discernible like clerical errors, arithmetical mistakes, calculations of interest, wrong figures or dates. Each case will of course depend on its own facts, but the rule will also apply where the correction of the slip is to give effect to the actual intention of the Judge and/or ensure that the judgment/order does not have a consequence which the Judge intended to avoid adjudicating on”.*** While paragraph 30 provides that ***“what is certainly not permissible in the application of section 99, is to ask the court to sit on appeal on its own decision, or to redo the case or application, or where the amendment requires the exercise of an independent discretion, or if it involves a real difference of opinion, or requires argument and deliberation or generally where the intended corrections go to the substance of the judgment or order”***. 3. Similarly, in **Telkom Kenya Ltd v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR**, the Court of Appeal held that once a court has rendered its final judgment, it becomes functus officio save for the limited exceptions recognized under the law. The Court stated: ***"The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions: where there had been a slip in drawing it up; and where there was an error in expressing the manifest intention of the court."*** 1. The Court of Appeal further observed that while the doctrine does not bar every engagement by a court with its decision, what it prohibits is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree issued. 2. Guided by these principles, this Court has examined the application dated 14th November 2024 alongside the judgment delivered on 7th June 2023. It is evident that the application did not merely seek correction of an accidental slip, clerical mistake or omission in the judgment or decree. Instead, it sought orders directing a fresh survey, determination of acreage, rectification of land records and amendment of the decree to conform to the findings of the Land Registrar and Surveyor made long after judgment had been delivered. 3. The court finds that those were not clerical corrections envisaged under Section 99 of the Civil Procedure Act. They were substantive matters touching on the rights and interests of the parties in land and would inevitably vary the effect of the judgment. Such orders could only be granted through a procedure sanctioned by law, such as review where the statutory requirements had been met, or through a fresh cause of action where appropriate, but not through invoking the slip rule. 4. Consequently, I find that the learned trial magistrate misdirected herself in law by invoking Section 99 of the Civil Procedure Act to grant substantive reliefs that fell outside the slim scope of the slip rule. 5. **On the second issue on whether the learned trial magistrate became functus officio and consequently lacked jurisdiction to grant the orders sought** 6. The Appellant also challenged the jurisdiction of the trial court on the ground that, having rendered its judgment on 7th June 2023, it became functus officio. 7. The doctrine of functus officio is founded on the principle of finality in litigation. The Court of Appeal in **Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) (9 May 2014) (Judgment)** under Paragraph 23 stated as follows; “Where there had been a slip in drawing it up, and,Where there was an error in expressing the manifest intention of the court. SeePaper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”The Supreme Court in Raila Odinga v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated; ...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as ageneral rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” 1. The Court of Appeal went on to state that once proceedings have been finally concluded and a decree perfected, the court lacks jurisdiction to revisit the merits of its decision except in the limited circumstances recognized by law. It concluded that where an application seeks orders that "went way beyond the exceptions" to the doctrine, the court is lacks jurisdiction to entertain it. 2. The record before this Court demonstrates that the judgment of 7th June 2023 conclusively determined the dispute between the parties. The subsequent reports by the Land Registrar and County Surveyor merely exposed challenges encountered during implementation of the decree at the execution stage. This court is of the view that those reports did not confer jurisdiction upon the trial court to revisit or enlarge its judgment. 3. The orders sought in the application dated 14th November 2024 required the court to determine matters relating to acreage, survey, rectification of land records and redistribution of land. Those issues neither formed part of the pleadings nor were they determined in the judgment. By granting those orders, the learned trial magistrate effectively reopened the dispute and altered the substance of the judgment. This is exactly what the Court of Appeal in **Telkom Kenya Ltd v John Ochanda** cautioned against, where it held that once judgment has been perfected, any further engagement by the court must not amount to a substantive reconsideration of the issues already determined. 4. I therefore find that the trial court exceeded the limited jurisdiction preserved under Section 99 of the Civil Procedure Act and, in effect, exercised jurisdiction that it no longer possessed. 5. Therefore, the appeal is merited. The ruling delivered on 22nd May 2025 cannot stand and is hereby set aside. The Notice of Motion dated 14th November 2024 is dismissed with costs and the cost of the appeal is awarded to the Appellant. JUDGEMENT, DATED AND DELIVERED VIA TEAMS PLATFORM AT HOMA BAY THIS 15TH DAY OF JULY 2026. **In the presence of;** 1. Onyango for the Appellant -Present 2. Oyala for the 1st Respondent – Present 3. No appearance for the 2nd and 3rd Respondent. 4. Court Assistant; Awino. JUSTICE J.W WANYONYI – JUDGE 15/7/2026