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ELCAllowedEnvironment and Land Appeal 6 of 2022 (Formerly Migori ELC Appeal No. 3 of 2019)

Ouma v Mwaga (Sued as the Legal Representative of the Estate of Peter Mwaga Ombura - Deceased)

Environment and Land Court
18 October 2023
GOGMA Ongondo
609 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can fix clerical errors in its own judgments and decrees without a full appeal.

What this practically means

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Executive summary

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This is a ruling by GMA Ongondo, J of the Environment and Land Court at Homa Bay on a notice of motion dated 15 August 2023 by Mary Juma Mwaga, the respondent in the underlying appeal, seeking review of the court's judgment of 25 January 2023. The application, brought under Articles 48 and 50 of the Constitution and section 80 of the Civil Procedure Act, sought rectification of an error apparent on the face of paragraph 33 of the judgment and the ensuing decree of 5 July 2023. The applicant's case was that the appeal by Morris Odhiambo Ouma had been dismissed, yet costs were erroneously awarded to the appellant as captured in paragraph 33 of the judgment. The respondent's counsel was served by email but filed no response, and the applicant elected not to file submissions. The court, guided by Article 159(2)(b) of the Constitution and section 3 of the Environment and Land Court Act on the expeditious delivery of justice, held that it had mandate under section 99 of the Civil Procedure Act to correct apparent errors in its own judgment, ruling and orders, citing Charles Karathe Kiarie & 2 others v Administrator of the Estate of John Waliace Mathare (Deceased) & 2 others (2020) eKLR. Finding an error apparent on the face of paragraph 33, the court allowed the application in terms of both prayers - rectification of the judgment and decree, and costs to the applicant.

Questions the Court framed

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

  1. 1.Whether the application for review is meritorious, i.e. whether there is an error apparent on the face of paragraph 33 of the judgment of 25 January 2023 and the ensuing decree

Key legal issues

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01

Whether an error apparent on the face of the judgment warranted review

Holding

The court found an error apparent on the face of paragraph 33 of the judgment - costs had been erroneously awarded to the appellant despite dismissal of the appeal - and allowed rectification.

Reasoning

The application was unopposed; the applicant showed that although the appeal was dismissed, paragraph 33 of the judgment and the decree of 5 July 2023 erroneously awarded costs to the appellant. Guided by section 99 of the Civil Procedure Act and the principle of justice without delay, the court found the error called for correction to attain the ends of justice.

p. 2

Legal principles established

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  • The court has mandate under section 99 of the Civil Procedure Act to correct apparent errors in its own judgment, ruling and orders.

Court orders

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  1. 1.The court to review its judgment rendered on 25 January 2023 by rectifying the error apparent on the face of paragraph 33 and the ensuing decree issued on 5 July 2023
  2. 2.Costs of the application granted to the applicant

The bench

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

GO
majority

Wrote the judgment

Jurisdiction invoked
Articles 48 and 50 of the Constitution of Kenya, 2010; sections 80 and 99 of the Civil Procedure Act (Cap 21)

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.

In the premises, there is an error apparent on the face of paragraph 33 of the judgment. The same calls for correction to attain the ends of justice. So, I find the application firm and meritorious.
p. 2Error apparent on the face of the record
Accordingly, I would allow the application in terms of the 1st and 2nd prayers therein and as stated in paragraph 1 (a) and (b) hereinabove.
p. 2Final orders - review allowed with costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ouma v Mwaga (Sued as the Legal Representative of the Estate of Peter Mwaga Ombura - Deceased)", Case Analysis (2023). Environment and Land Appeal 6 of 2022 (Formerly Migori ELC Appeal No. 3 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20917/eng@2023-10-18

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