1. On 25th September 2023, this court entered judgment in favour of the 1st, 2nd, 3rd and 4th respondents herein, who were the appellants in the appeal. In so doing the court inter alia observed/held:-
“From the totality of the evidence produced in the lower court, I agree with the Plaintiff in the Counterclaim that there was an error in the registration of the suit property which occasioned the reduction of the 1st defendant’s parcel of land in the title but not on the ground.
Concerning the prayer for payment of Kshs. 63,183/- on account of damage done on the 1st appellant’s properties and developments in 1636, I note that it was not specifically pleaded as by law required. For that reason, I decline grant it.
The upshot of the foregoing is that the appellants have made up a case for interference with the decision of the lower court and for grant of the prayers sought in the Appeal, which I hereby grant them in terms of prayers (i), (iii) and (iv) of the counterclaim. I also award them the costs of the main suit and the counterclaim. I also award them costs of the appeal to be paid by the 2nd defendant in the Counterclaim.”
2. Claiming that there are arithmetical mistakes and errors in the judgment which makes it impossible to execute the judgment and/or the decree emanating therefrom against them, the respondent/applicants filed the application dated 9th February 2024 seeking the following orders:-
i) Spent
ii) Spent
iii) That the honourable court be pleased to recall and reopen the case (read the appeal);
iv) That upon recalling and/or reopening the case (read the appeal) this honourable court be pleased to review, vary and/or set aside the order made on 25th September 2023 and order it to be heard afresh.
v) That the costs of the application be in cause.
3. The application is premised on the grounds on its face and supported by the affidavit of Musa Chepkeittany (2nd respondent/applicant) in which the grounds on the face of the application are reiterated.
4. Through the replying affidavit of Hellen Chepyegon sworn on 11th April 2024, the appellants/respondents acknowledge that there are errors in the judgment but contends that the errors are minor and do not affect the substratum of the court’s finding.
5. According to the appellants/respondents, the final orders granted by the court are clear hence there are no sufficient basis for ordering fresh hearing of the appeal.
6. When the application came up for hearing, the respondents/applicants relied on the application and the affidavit sworn in support.
7. On their part, the appellants/respondents filed submissions dated 5th June 2024, in which they reiterate their contention that the errors in the judgment are minor and do not affect the substratum of the court’s finding. The appellants/respondents’ flag the errors in the judgment and urge the court to rectify them as follows:-
“Remedies.
The errors referred by the Applicant are:-
a. 4(a), (b) and (c) The court awarded 2.5Ha instead of 2.6 acres;
Remedy:-Correct the acreage in the title and land registry records so as to read 2.6 acres;
b. 4(d) The court made a finding that the prayer for special damages of Kshs.63, 185/= was not proved but in the end allowed the prayer Remedy:- disallow the prayer for special damages;
c. 4(d) The court erroneously found that the 1st Defendant (instead of the 2nd defendant) purchased the suit land; Remedy:- Correct the finding so as to state that the 2nd Defendant purchased the land.
d. 4(e) the decree in the lower court was not set aside hence the order cannot be executed.
Response:-We disagree with the applicant on that account. The court allowed prayer 1 of the appeal, which sought to set aside the judgment of the trial court. there is therefore no error or mistake apparent on the face of the record.”
8. On costs of the application, they pray that they be in cause.
Determination
9. I have read and considered the application and the response thereto. I have also read the judgment of the court and established there are indeed minor errors on the judgment, which errors do not in any way affect the orders or decision of the court as can be ascertained from the body of the court’s judgment. That being the case, I agree with the appellants/respondents’ Counsel that the errors can be corrected in the manner suggested by the appellants/respondents’ Counsel without any prejudice to the respondents/applicants as the errors to do not affect the substratum of the court’s decisions.
10. Arising from the foregoing, in exercise of the powers conferred on this court by law, in particular Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, I rectify the errors flagged by the respondents/applicants as follows:-
1. Reference to 2.5 Ha in the 1st defendant’s counterclaim found in paragraph 8(i) of the judgment of this court delivered on 25th September, 2023 is corrected to read 2.6 acres;
2. The error concerning the prayer for special damages which this court disallowed vide paragraph 93 of its judgment but inadvertently allowing prayer iv in the 1st defendant’s counterclaim which is in respect of the denied prayer for special damages of Kshs. 63,183/- be and is hereby corrected by replacing prayer (iv) in paragraph 94 of the judgment with prayer (v) in the counterclaim which the court intended to allow and did allow in its judgment.
3. The finding that the 1st defendant/appellant bought 15 acres of land in paragraph 89 of the judgment is corrected to read that the 2nd defendant/appellant bought 15 acres of land.
11. The upshot of the foregoing is that the applicants have not made up a case for re-opening of the appeal for hearing. Nevertheless, they have made up a case for review of the judgment and/or decree emanating therefrom to the extent contemplated in this ruling.
12. Parties shall bear their own costs of the application.
13. Orders accordingly.
Dated, signed and delivered at Iten this 9th day of July, 2024.
Ruling delivered virtually in the presence of;-
Mr. Kiptoo for applicant/respondent
Mr. Kipnyekwei for the Appellant/respondent
Court Asst.: Alex