[2012] KEHC 4057 (KLR)
The court held that the proposed amendment to the decree could not be granted because the original judgment specifically related to land parcel No. Butsotso/Shikoti/1859, while the applicant sought to substitute it with No. Butsotso/Shikoti/4464. Such an amendment would not merely correct an accidental omission but...
Source-derived case information.
- Citation
- [2012] KEHC 4057 (KLR)
- Parties
- Applicant: Stanley Mayodi; Respondent: James Sakwa Mukolwe
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 483 of 1993
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Amend Decree
- Outcome
- application dismissed with costs
- Legal Topics
- Amendment of Decree, Accidental Omission, Land Parcel Identification, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Mayodi
Applicant
James Sakwa Mukolwe
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion to Amend Decree
Legal Issues
- 1 Whether the court can amend a decree to substitute a different land parcel number due to an accidental omission.
- 2 Whether the proposed amendment aligns with the original judgment.
Ratio Decidendi
The court held that the proposed amendment to the decree could not be granted because the original judgment specifically related to land parcel No. Butsotso/Shikoti/1859, while the applicant sought to substitute it with No. Butsotso/Shikoti/4464. Such an amendment would not merely correct an accidental omission but would fundamentally alter the substance of the judgment. The court found that the applicant's remedy did not lie in amending the decree but possibly through other legal avenues. Accordingly, the application to amend the decree was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to amend the decree is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Civil Case 483 of 1993
STANLEY MAYODI........................................................................PLAINTIFF/APPLICANT
VERSUS
JAMES SAKWA MUKOLWE...............................................DEFENDANT/RESPONDENT
RULING
The Notice of Motion application dated 24. 11. 2011 seeks orders that the decree granted herein be amended and the annexed amended decree be deemed as duly amended upon payment of requisite court fees.
The application is supported by the supporting affidavit of STANLEY MAYODI, the Plaintiff/Applicant.
The main ground for the application is that the decree herein has errors arising out of an accidental omission. That by genuine mistake, the applicant quoted title No. Butsotso/Shikoti/1859instead of No. Butsotso/Shikoti/4464. That the two aforestated land parcels are adjacent and they share a boundary and when the surveyor went to execute the court decree, it was found that the applicant occupied land parcel NO. BUTSOTSO/SHIKOTI/4464.
There was no attendance on the Respondents part although service had been duly effected. No papers were filed in opposition to the application.
I have considered the application. The judgment herein which was delivered on 4th November, 1998 relates to land parcel No. Butsotso/Shikoti/1859. The proposed amended decree is therefore not in tandem with the judgment. The proposed decree herein has no legs to stand on. If there is any solution to the applicant’s problem, same does not lie in the mere amendment of the decree.
With the foregoing, the application fails with costs.
Delivered, dated and signed at Kakamega this 22nd day of March, 2012
B. THURANIRA JADEN
J U D G E