JOHNSONE MATITI KITHENDU AND KALEKYE NGUI VS HOUSING FINANCE CO.LTD. AND TITUS MUSYA

1. This is a ruling in respect of an application by the Decree holder to correct the slip on the Judgment. The Applicant sought to correct the Judgment in the following terms: -
2. The date of the judgment to read 21^st November, 2023 instead of 21^st December, 2023.
3. The dates of the letter referred to in the first sentence in paragraph 51 to read 25^th February, 2019.
4. The dates of the letter referred to in the Third line in paragraph 51 to read 26^th June, 2019 instead of 26^th June, 2016.
5. The date appearing in the second line of paragraph 51 as 30^th June, 2016 to be corrected to read 30^th June, 2019
6. Amend the final order number (a) at paragraph 64 of the judgment to read” THERE IS NEED TO ISSUE ANOTHER NOTICE” to agree with the findings in paragraphs 51 of the judgment.
7. There were typographical errors in the Judgment according to the plaintiff. Sections 99 allows the court to correct an accidental slip. The same provides as hereunder: -

“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 nay of the parties”.

1. In this case all dates in issue related to 2019. However, I erroneously indicated at paragraph 51 as 2016. Accordingly, I am entitled to correct the dates in paragraph 51 to read 2019 instead of 2016, as erroneously indicated.
2. Secondly the final orders are encapsuled in paragraph 63 of the Judgment, which reads as follows: -

“ In the circumstances, I agree with the Plaintiffs that the initial statutory notices issued by the 1^st Defendant were invalid by virtue the agreement dated 25^th February, 2019 which created new obligations and entitled the plaintiffs to a fresh statutory notice besides varying the loan amount. The 1^st Defendant was accordingly entitled to issue fresh statutory notice of sale of the suit premises. The plaintiff’s case, on a balance of probabilities is therefore merited and I allow it.”

1. Unfortunately, in transposing the paragraph 63 to paragraph 64 (a), I omitted all the words as indicated above. “The Judgment only indicates, “No need to issue another notice”. This was a slip. I therefore delete paragraph 64 (a) and replace the same with the words in paragraph 63.
2. I note that the error was also reflected in the judgment which was Post-dated to 21/12/2023 instead of 21/11/2023 when it was actually delivered. The same is accordingly corrected. I regret the error that arose from excusable error which does not change the status of my findings.

Determination

1. The application is therefore allowed and the original corrected as follows: -
2. The dates in paragraph 51 to read 2019 instead of 2016.
3. The final orders to read as follows: -
4. The initial statutory notices issued by the 1^st Defendant were invalid by virtue the agreement dated 25^th February, 2019 which created new obligations and entitled the plaintiffs to a fresh statutory notice besides varying the loan amount. The 1^st Defendant was accordingly entitled to issue fresh statutory notice of sale of the suit premises.
5. A Declaration be and is hereby issued that the 2^nd Defendant should have issued and served the plaintiffs with a 45 days Auctioneer’s Notice notification for sale before placing Title Number Kwale/Diani Beach Block/1164 for auction.
6. A Declaration be and is hereby issued that the proposed sale of Title Number Kwale/Diani Beach Block/1164 on 19^th September, 2019 is null and void.
7. 1^st Defendant to do a fresh valuation on Title Number Kwale/Diani Beach Block/1164 taking into account the developments erected thereon at the current market value before embarking on afresh sale.
8. Each party will bear their costs. The issue of 19/9/2019 is now moot.
9. The judgment date is corrected to 21/11/2023, when it was delivered.
10. Each party to bear their own costs.

DELIVERED, DATED and SIGNED at MOMBASA on this 8^th day of April, 2023. Judgment delivered through Microsoft Teams Online Platform.

In the presence of: -

M/s Robson Harris & company Advocates for the Defendants

M/s Munyithya, Mutugi, Umara & Muzana Company Advocates for the Plaintiffs/ Applicants

Court Assistant - Norah