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Court of AppealPartially AllowedCivil Appeal No. 43 of 2015

Mate Gitabi v Jane Kabubu Muga alias Jane Kaburu Muga & 3 others [2017] KECA 596 (KLR)

Court of Appeal of Kenya
5 April 2017
PWP. N. WakiRNR. N. NambuyeFAF. Azangalala
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it can correct its own judgments anytime to fix clear errors, excluding a deceased person's land from an earlier decree.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Waki, Nambuye and Azangalala, JJ.A) on a Notice of Motion dated 13th July 2016 in which the appellant sought review of the Court's own judgment of 6th April 2016, arguing an error apparent on the face of the record: the judgment had purported to make orders affecting land parcel Magumoni/Mukuuni/1674, registered in the name of the deceased first respondent, Jane Kabubu Muga, even though the High Court (Makau, J) had expressly found in its judgment of 2nd July 2015 that the suit against her had abated under Order 24(4)(1) of the Civil Procedure Rules 2010 and that no order could issue against that parcel. The application was anchored on sections 3A and 3B of the Appellate Jurisdiction Act, which the respondents submitted conferred no express power of review. The Court agreed that those provisions donate no express review power, but held that rule 1(2) of the Court of Appeal Rules enshrines the Court's inherent power, which may be invoked formally or by the Court on its own motion, and that failure to cite the correct provision was no bar. The Court held rule 35(1), permitting correction of accidental slips or omissions at any time, was the appropriate procedure. Finding that the Court had overlooked the High Court's abatement finding, it corrected the judgment and varied the final order so that the decree of the High Court is partially set aside, the appellant's suit is partially allowed, and Magumoni/Mukuuni/1674 is excluded from the resulting decree. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to revisit its own judgment of 6th April 2016 under sections 3A and 3B of the Appellate Jurisdiction Act notwithstanding the absence of an express power of review
  2. 2.Whether the failure to formally cite the correct procedural provision (rule 1(2) and rule 35(1) of the Court of Appeal Rules) bars the Court from granting the relief sought
  3. 3.Whether the procedure to be followed is review or correction of an error under rule 35 of the Rules of the Court
  4. 4.Whether the judgment of 6th April 2016 contained an error inasmuch as it purported to make orders against land parcel Magumoni/Mukuuni/1674, a suit that had abated against the deceased first respondent

Key legal issues

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01

Whether the Court has power to correct its own judgment despite absence of an express power of review in sections 3A and 3B of the Appellate Jurisdiction Act

Holding

Sections 3A and 3B confer no express power of review, but the Court may invoke its inherent power under rule 1(2) of the Court of Appeal Rules, which can be exercised formally or suo motu.

Reasoning

The overriding objective provisions enshrine fair, just, speedy and proportionate disposal of cases but do not uproot established procedures. The inherent power under rule 1(2) exists for the ends of justice and to prevent abuse of process; the case law shows it is not dependent on formal invocation. Since the High Court had expressly found the suit against the deceased first respondent abated, sending the applicant away empty-handed would affront substantive justice.

p. 3
02

Whether the judgment of 6th April 2016 contained an error apparent on the face of the record with respect to Land Parcel Magumoni/Mukuuni/1674

Holding

Yes. The High Court had expressly found the suit against the deceased first respondent abated and that no order could issue against the parcel, a finding overlooked by the Court in its judgment; rule 35(1) was the appropriate procedure for correction.

Reasoning

The trial judge, invoking Order 24(4)(1) of the Civil Procedure Rules 2010, had found the suit against the deceased first respondent abated and that no order could issue against the parcel she owned. The Court overlooked that finding and order in its judgment of 6th April 2016. Rule 35, rather than review, is the most appropriate route since it allows correction of accidental slip or omission to give effect to the Court's intention.

p. 4

Legal principles established

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  • The overriding objective and Article 159(2)(d) do not operate as a licence to derogate from laid-down court procedures; they are to be invoked sparingly.
  • The inherent power of the Court under rule 1(2) of the Court of Appeal Rules may be invoked formally by a party or by the Court on its own motion, and failure to formally cite the relevant provision does not deprive a party of relief.
  • Rule 35(1) permits correction, at any time, of clerical or arithmetical mistakes or errors arising from accidental slip or omission in any judgment of the Court so as to give effect to the Court's intention.

Court orders

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  1. 1.The error on the face of the Court's judgment of 6th April 2016 at page 11 line 11 is corrected to read that the subdivisions are of no effect with the exception of the subdivision with regard to Land Parcel No. Magumoni/Mukuuni/1674
  2. 2.The final order at page 12 line 8 is varied to read that the judgment and decree of the High Court at Meru given on 2nd July 2015 is partially set aside and substituted with an order that the appellant's suit before the High Court is partially allowed as prayed, with the exception of the exclusion of parcel number Magumoni/Mukuuni/1674 from the resulting decree
  3. 3.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority

Wrote the judgment

RN
majority

Wrote the judgment

FA
majority
On appeal from
High Court of Kenya at Meru
Meru HCCC No. 2 of 2005 (O.S)
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9), Article 159(2)(d) of the Constitution, and the inherent power under rule 1(2) and rule 35(1) of the Court of Appeal Rules

Relief refused

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Review of the Court's judgment under sections 3A and 3B of the Appellate Jurisdiction Act as an express power of review

Those provisions do not donate an express power to review; the correction was effected instead through the inherent power under rule 1(2) and rule 35(1)

p. 2

Costs

The parties shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The final order on page 12 line 8 from the top is accordingly varied to read that the judgment and the decree of the High Court at Meru given on 2nd July, 2015 is partially set aside and substituted with an order that the appellant's suit Before the High Court is partially allowed as prayed with the exception of the exclusion of parcel number Magumoni/Mukuuni/1674 the suit property, from the resulting decree.
p. 4Final orders - variation of prior judgment and exclusion of abated parcel
the inherent power donated to the court vide the rule 1(2) of the rules of the court procedures is a ready handmaiden of justice which may be invoked formally or the court may invoke it on its own motion as the case may be
p. 3Inherent power may be invoked formally or suo motu
It is now trite that the application of the overriding objective and the provision of Article 159(2) (d) do not operate as an open license for parties to derogate from the adherence to laid down court procedures.
p. 2Limits of Article 159(2)(d) and the overriding objective
A clerical or arithmetical mistake in any judgment of the court or any error arising therein from an accidental slip or omission may at any time, whether before or after the judgment has been embodied in an order, be corrected by the court
p. 3Rule 35(1) - correction of errors in judgments

Issues in the judgment

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minor

First respondent's name is spelt inconsistently in the judgment ('Jane Kabubu Muga' in the title and body, 'Jane Kaburu Muga' in the alias); this is the alias as stated by the court, not an analytical error.

minor

Typographical inconsistencies in the judgment text (e.g. 'consionable' for 'conscionable'), apparent errors of transcription in the source document.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mate Gitabi v Jane Kabubu Muga alias Jane Kaburu Muga & 3 others [2017] KECA 596 (KLR)", Case Analysis (2017). Civil Appeal No. 43 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/596/eng@2017-04-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.