Gideon Kanini Kamacho & another v Kariuki Kanini & 2 others [2017] KEELC 3242 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

CIVIL SUIT NO. 137 OF 2002

GIDEON KANINI KAMACHO.....................1ST PLAINTIFF

CYRUS KANINI NDEGE.............................2ND PLAINTIFF

VERSUS

KARIUKI KANINI…...……..................….1ST DEFENDANT

NANCY WANGECHI PETER.............… 2ND DEFENDANT

TABITHA WAWIRA KARIUKI................ 3RD DEFENDANT

RULING

1. The Notice of Motion dated 23rd November, 2016 by Rakoro & Co Advocates (advocates for the plaintiff/ applicant), seeks to amend an error in the judgment dated 14th October, 2016 and delivered on 8th November,  2016.

2. The application is premised on the grounds on its face and is supported by an affidavit sworn by Daniel O. Rakoro, on 23rd November, 2016. In the said affidavit, he depones that my brother, Ombwayo J, rendered his judgment where the suit  property irregularly subdivided  was recorded as Kabare/Mutige/468instead of Kabare/Mutige/65. As a result, this error has hampered execution of the decree with the correct details.

3. The application is opposed. The 2nd and 3rd defendants (respondents hereinafter) filed grounds of opposition  dated 15th December, 2016 and a replying affidavit sworn on 9th January, 2017. It is their contention that the application is a sham; that the judgment offends Order 21 Rule 1of the Civil Procedure Rules, as it was not delivered within 60 days; that there  was  inordinate delay of delivery of the judgment for over 2 years and  the reasons for this delay were not forwarded to the Chief Justice as required by law; that the entire judgment should be set aside as the plaintiff is enjoying two other parcels of land (Baragwe/Guama/ 201, South  Ngariama/3150) and has in fact been harassing the 3rd defendant and her children.

4. The respondents also allege that there is no typographical error in the judgment; that by the time the judgment was delivered the suit had abated against the 1st defendant; that the judgment contradicts itself by referring to Suit No 161 of 1996 which has never been set aside or appealed from, and Civil Case No. 78 of 1998 which the court ordered to proceed; that the judgment was silent on the fate of land parcels Baragwe/Guama/201, South Ngariama/3150 and Kabare/Nyagithuci/97. Finally, the  respondents challenge the jurisdiction of the court pursuant to  Section 12of the Civil Procedure Act on the grounds that the suit property is situated in Kerugoya County.

5. The application was heard on 1st February, 2017. Mr King'ori holding brief for Mr Rakoro for the applicant, chose to rely on the grounds in the application and the  supporting affidavit.

6. The 2nd respondent was unrepresented and she too relied on her grounds of opposition and the replying affidavit.

7. The law on amendment of judgment is provided for in  Section 99of the Civil Procedure Act as follows:

“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.”

8. With due respect to the respondent, the issues she has raised for instance, inordinate delay in delivering the judgment, allegations of impropriety by the plaintiff, non-substitution of deceased parties and the jurisdiction of the court, are all issues that should be raised and canvassed in the intended appeal. The instant application is not an appeal or an application for review and was filed only to address the error in the judgment.

9. I have looked at the error referred to in the judgment dated 14th October, 2016 and there is no doubt that there is a typographical error in the aforesaid judgment. The suit property irregularly subdivided is stated to be Kabare/Mutige/468 instead of Kabare/Mutige/65. This  is recorded in the last line of page 12 and lines 1 and 2 of page 13 as follows: “Furthermore an order is hereby issued cancelling the titles to L.R.  KABARE/MUTIGE/ 468, L.R. KABARE/MUTIGE/469 and L.R. KABARE/MUTIGE/470 curved following the aforesaid irregular subdivision and transfer of L.R. KABARE/MUTIGE/468”(Emphasis mine).

10. From the pleadings, and also as captured in different parts of the aforesaid judgment, the suit property is clearly described as LR Kabare/Mutige/65. The error on page 13 is obviously an honest human error which this court has a duty to correct. I consequently do so by  allowing prayer 2 in the application.

Dated, signed and delivered in open court at Nyeri this 16th day of March, 2017.

L N WAITHAKA

JUDGE

In the presence of:

N/A for the plaintiffs

N/A for 1st defendant (deceased)

Nancy Wangechi Peter 2nd defendant

N/A for the 3rd defendant