Dr. Okello John Robert Liech (Ex Parte) v The Chief Finance Officer, County Government of Homa Bay

court on 7th April 2025 by Hon. Dr. iur F. Nyagaka (J.). Specifically, the Ex Parte Applicant contends that while the substantive merits of the judicial review application were determined and the order of mandamus was granted in the body of the judgment, the introductory headers, concluding remarks, and the subsequent decree extracted by the Deputy Registrar erroneously framed the outcome as granting “Leave to apply for an order of Mandamus” rather than issuing the substantive “Order of Mandamus”. The Respondents opposed the application via a Replying Affidavit sworn by George Ila on 14th September 2026, contending that the court lacks jurisdiction under Section 99 to alter substantive provisions and has become functus officio. 2. Summary of Pleadings and Procedural History Nature of the Original Application: The Ex Parte Applicant initiated the Judicial Review Application on 9th October 2023 (pursuant to leave granted on 25th September 2023) under Order 53 Rule 1(2) and Rule 3 of the Civil Procedure Rules, and Section 21(5) of the Government Proceedings Act. Primary Relief Sought: An order of Mandamus directed at the Chief Finance Officer of the County Government of Homa Bay (2nd Respondent), compelling them to settle a decretal sum of Kshs. 3,377,900/= plus interest at 12% p.a. from 15th July 2021 until payment in full, stemming from Homa Bay Chief Magistrate's Court Land Case No. 18 of 2018. Origin of Dispute & Judgment: The Applicant originally filed a claim for damages on 19th February 2014 at ELC Kisii, later transferred to Homa Bay as Land Case No. 18 of 2018. On 15th July 2021, judgment was entered in favor of the Applicant against the County Government of Homa Bay for special damages, general damages for trespass, and aggravated damages (totaling Kshs. 4,277,900/=). An appeal by the County Government (Homa Bay ELC Appeal No. 45 of 2021) was partially dismissed on 7th December 2022, upholding the trial court's judgment save for setting aside mesne profits and 2|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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costs. Execution Steps: A Certificate of Order of Judgment and a Certificate of Costs against the County Government were issued and served upon the Respondents on 4th August 2023. The Respondents' Defence & Stay Application: The Respondents failed to file a formal affidavit in response within the allocated timelines during the substantive application. Instead, they filed a separate Notice of Motion dated 20th November 2023 seeking a stay of proceedings pending Court of Appeal Civil Appeal No. E046 of 2022. The Correction Application (Notice of Motion dated 29th May 2026): Brought under Section 99 of the Civil Procedure Act, seeking to rectify the judgment delivered on 7th April 2025 which misdescribed the substantive "Order of Mandamus" as "Leave to apply for an order of Mandamus". Directions and Filing Status: On 28th July 2026, directions were issued granting the Respondent 14 days from 24th July 2026 to file responses. The Respondent filed their Replying Affidavit on 15th September 2026 (erroneously cited as 14th September 2026), which was outside the prescribed timelines. No written submissions were filed by the Respondent. 3. Framing of the Issues From the pleadings, record, and legal frameworks presented, the following issues commend themselves for determination by this court: i) Whether the Replying Affidavit filed by the Respondent outside the court-ordered timelines is properly before the court. ii) Whether the court possesses the legal jurisdiction and power under Section 99 of the Civil Procedure Act (and comparative regional jurisprudence) to correct, amend, or clarify judicial review judgments and decrees tainted by clerical errors or accidental slips. iii) Whether the discrepancy in the judgment dated 7th April 2025— 3|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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referencing "Leave to apply" instead of the substantive "Order of Mandamus"—constitutes an accidental slip or clerical error correctable under the slip rule, or whether it violates the doctrine of functus officio. iv) What orders should issue regarding costs. 4. Analysis and Determination of the Issues Issue 1: Timelines and the Filing of the Replying Affidavit The record indicates that on 28th July 2026, this court gave clear directions for the disposal of the application, granting the Respondent 14 days from 24th July 2026 to file their response. The Respondent’s Replying Affidavit was sworn on 14th September 2026 and filed on 15th September 2026, well outside the stipulated timelines without leave of the court. Courts across East Africa consistently emphasize that court-issued timelines and case management orders are not mere guidelines but procedural rules meant to ensure the expeditious administration of justice (see the Kenyan Supreme Court dictum in Raila Odinga & 2 Others v. Independent Electoral and Boundaries Commission & 3 Others). However, in the interest of substantive justice and to ensure that the Respondent's objections are fairly evaluated on merit, the court has exercised minimal leniency while taking note of the flagrant disregard for court timelines. Issue 2 & 3: Jurisdiction to Correct Judicial Review Proceedings (The Slip Rule) and Applicable Law The core controversy revolves around whether Section 99 of the Civil Procedure Act (Cap 21, Laws of Kenya) can be invoked to correct an error where a judgment in a substantive judicial review proceeding mistakenly refers to "Leave to apply for an order of Mandamus" rather than the substantive order granted. Section 99 of the Civil Procedure Act codifies the classic "slip rule," providing that: 4|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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"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." The Respondents have vehemently argued that granting the application would violate the doctrine of functus officio and run afoul of Section 80 and Order 45 of the Civil Procedure Rules regarding review. 5. To resolve this comprehensively, this court looks at the uniform judicial approach taken across East African and regional common law jurisdictions: Kenya: Kenyan jurisprudence firmly establishes that the slip rule cannot be used to rewrite a judgment or alter a substantive judicial determination. However, where a judgment clearly grants a substantive remedy in its body (as noted in paragraphs 18 and 19 of the judgment dated 7th April 2025) but the header or decree mischaracterizes the nature of the ruling (confusing "leave" with the "substantive order"), this falls squarely within an "accidental slip" or clerical misdescription. As held in Ndungu v. Kibiri [2025] KEHC 1012 (KLR), clerical and typographical oversights that frustrate the fruits of litigation do not render a court functus officio regarding the mechanical integrity of its records. Uganda: Under Section 99 of the Ugandan Civil Procedure Act (Cap 71) — which is pari materia with Kenya's provision — Ugandan courts have consistently held in landmark authorities (such as Sietco v. Noble Builders [2003] UGSC) that procedural mechanisms should not be weaponized to defeat justice. Where an order contains an accidental slip or omission that renders execution impossible, the court retains inherent and statutory jurisdiction to align the formal decree with the actual judicial intention. 5|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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Tanzania: Similarly, under Section 95 and Section 99 of the Tanzanian Civil Procedure Code (Cap 33 R.E. 2002), Tanzanian courts recognize that the slip rule and the inherent powers of the court are designed precisely to cure clerical errors arising from registry confusion or drafting oversights, ensuring that a decree accurately reflects the substantive findings of the judge. Malawi: In Malawian civil practice, the scope of the slip rule and the prohibition against altering radical elements of a judgment is firmly grounded in established local precedent. As affirmed by the Malawi Supreme Court of Appeal (MSCA) in matters concerning the limits of post-judgment corrections and the doctrine of functus officio (such as in Attorney General v. Greater Blantyre Town Council [1997] MLR 392), the court recognizes that while inherent powers and the slip rule permit the rectification of clear clerical or typographical errors and accidental slips to give effect to the court's manifest intention, they cannot be extended to subvert finality or alter substantive merits. Correcting a mere clerical mismatch—such as a judgment header mistakenly recording "Leave to apply" instead of the substantive order already evaluated and granted in the body of the ruling—falls squarely within the bounds of administrative and typographical correction rather than an impermissible review. 6. Counsel for the respondent argued that the power to correct clerical mistakes or accidental slips, as well as to vary orders so as to carry out its own meaning and to make its meaning plain, does not extend to variations of a radical nature. She relied on Order 20 Rule 11 of the Rules of the Supreme Court Practice Note 20/11/1 and the cases of R v. Cripps, ex p. Muldoon [1983] 3 WLR 465 and Preston Banking Co. v. Allsopp [1895] 1 Ch. 141 for the proposition that if an order, as drawn, correctly expresses the intention of the Court, it cannot be corrected under Ord. 20 r. 11 RSC or the Court's inherent jurisdiction. In 6|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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discussing the functus officio rule, the Court below observed that it is a common law rule that prohibits, in the absence of statutory authority, the reopening of a matter before the same Court, tribunal, or other statutory actor which rendered the final decision. The Court observed that once a validlymade final determination has been issued, the Court is powerless to change it, other than to correct obvious technical or clerical errors, or unless specifically authorized to do so by statute or regulation. 7. The Court cited with approval a quotation from the Canadian case Candlex v. Alberta Association of Architects [1989] 2 SCR 848 that: "The general rule (is) that a final decision of a Court cannot be reopened ... 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." 8. The Court below went on to observe as follows: "The functus officio rule exists to provide finality to judicial decisions so that people and businesses are afforded the certainty they require to operate effectively. The ability to revisit and change determinations could easily disrupt the lives and businesses of those affected by the determinations and cause them hardship and loss. The rule is premised on the idea that overall, the advantages of avoiding uncertainty (and its consequences) outweigh the reasons a Court might have for wanting to change a determination in a particular case. If a Court is permitted to continually revisit or reconsider final orders simply because it has changed its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding." 7|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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9. Applying these comparative and local principles to the instant case, the record shows that the Ex Parte Applicant duly filed their substantive Notice of Motion on 9th October 2023 following leave granted on 25 th September 2023. The substantive application was argued and culminated in the judgment of 7 th April 2025. While paragraphs 18 and 19 of the judgment correctly evaluated the mandamus order, the header and the extracted decree erroneously cited "Leave to apply". 10. To hold that this court is functus officio and powerless to correct a typographical and clerical mismatch that renders a lawful decree incapable of execution would be a travesty of justice. The court possesses both the statutory mandate under Section 99 of the Civil Procedure Act and the inherent jurisdiction to correct its records so that they speak the truth. Issue 4: Costs The Ex Parte Applicant has sought the costs of this application. Costs follow the event under Section 27 of the Civil Procedure Act. Although the clerical error originated from court drafting/registry confusion, the Respondents resisted a straightforward rectification application, necessitating formal arguments. Consequently, nominal costs shall be awarded to the Ex Parte Applicant. 11. Disposition and Orders Accordingly, for the reasons set out above, the Ex Parte Applicant’s Notice of Motion dated 29th May 2026 is hereby allowed in the following terms: THAT an order be and is hereby issued correcting the accidental slip, clerical error, and omission in the judgment delivered on 7th April 2025 by Hon. Dr. iur F. Nyagaka (J.), specifically substituting any references to "Leave to apply for an order of Mandamus" in the headers, introductory segments, and resulting formal decree with the substantive "Order of Mandamus" as contemplated and granted in paragraphs 18 and 19 of the said judgment. THAT the Deputy Registrar of this court is hereby directed to forthwith 8|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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extract, issue, and seal an amended Decree reflecting the substantive Order of Mandamus directed against the 2nd Respondent to facilitate lawful execution pursuant to Section 21 of the Government Proceedings Act. THAT the costs of this application shall be borne by the Respondents. DATED, SIGNED, AND DELIVERED ELECTRONICALLY AT HOMA BAY THIS 28TH DAY OF SEPTEMBER, 2026. HON. JUSTICE J.W. WANYONYI JUDGE, ENVIRONMENT AND LAND COURT IN THE PRESENCE OF; 1. Odongo holding brief for Akello for the Respondent – Present 2. Oyala for the Applicant, Present 3. Court Assistant, Ms. Awino 9|Page HOMA BAY JR APPLICATION NO. E003 OF 2023 – RULING.

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