REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 427 OF 2018
KENYA BANKERS ASSOCIATION……....... PETITIONER/APPLICANT
VERSUS
THE HONOURABLE ATTORNEY GENERAL……….1 ST RESPONDENT
THE NATIONAL ASSEMBLY…………………….……2 ND RESPONDENT
AND
CENTRAL BANK OF KENYA……………………...INTERESTED PARTY
RULING ON AN APPLICATION UNDER SECTION 99 OF THE CIVIL PROCEDURE ACT FOR CORRECTION OF A JUDGMENT
1. Section 99 of the Civil Procedure Act provides one of the post judgment remedies called the Slip Rule. The section stipulates:
99. Amendment of judgments, decrees or orders
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 .
2. Under the above section, clerical or arithmetical mistakes arising therein from an accidental slip or omission at any time whether before or after judgment can be at the instance of the court on it own motion or on application of any interested party be corrected, so as to give effect to what was the intention of court when judgment was given.
3. On the nature and scope of the court’s powers under the slip rule, the Court of Appeal in Dominic Alois George Omenye t/a Omenye & Associates v Prime Bank Limited [2017] eKLR stated as follows:
“We start by asking ourselves the question, what is the true purpose of Section 99 of the Civil Procedure Act on which the application before Amin, J. was founded? In Raniga v. Jivraj [1965] EA 700, the predecessor of this Court was considering an application to vary its judgment. The Court stated that under section 3(2) of the Appellate jurisdiction Act, it had the same jurisdiction to amend judgments and orders that the High Court has under section 99 of the Civil Procedure Act. Regarding that jurisdiction, the Court was emphatic that the power to correct errors will only be made where the court is fully satisfied that it is giving effect to intention of the court at the time when judgment was given, or in the case where a matter was overlooked, where it is satisfied beyond doubt that as to the order which it would have made had the matter been brought to its attention.
Subsequently in Lakhamshi Brothers Ltd v R. Raja & Sons [1966] EA 313, Sir Charles Newbold, P., speaking for a unanimous Court said:
“Indeed there has been a multitude of decisions by this Court, on what is known generally as the slip rule, in which the inherent jurisdiction of the court to recall a judgment in order to give effect to its manifest intention has been held to exist. The circumstances however, of the exercise of any such jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to judgment to give effect to the intention of the court when it gave its judgment or to give effect to what clearly would have been the intention of the court had the matter not inadvertently been omitted.”
Githinji, Ag. J. (as he then was), was of the same mind in Davda v. Ahmed & Others [1978] KLR 665, when he stated that the error or omission under section 99 must be an error in expressing the manifest intention of the Court.”
4. Thus, to determine whether the slip rule can be applied, the intention of the court in its judgment is important.
5. The above power of the Court is commonly known as the “slip rule”. In applying the rule, the Supreme Court in the case of Fredrick Otieno Outa v Jared Odoyo Okello and 3 others [2017] eKLR guided as follows:
“By its nature, the slip rule permits a court of law to correct errors that are apparent on the face of the judgment, ruling or order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the judgment or decision of the court. By the same token, such errors must be of such nature that their correction would not change the substance of the judgment or alter the clear intention of the court. In other words, the slip rule does not confer upon a court any jurisdiction or powers to sit on appeal over its own judgment, or, to extensively review such judgment as to substantially alter it. Indeed, as our comparative analysis of the approaches by other superior court demonstrates, this is the true import of the slip rule.”
6. Applying the above principles to this case, on 20 th June 2019, this Court, differently constituted, by Hon Mr. Justice J.A. Makau (as he then was) delivered a judgment which is also reported on the kenyalaw.org finding that petition dated to be meritorious and made the following orders:
7. In the petition subject of the judgment, the petitioner had sought for a declaration that section 63 of the Finance Act, 2018 which had amended the Banking Act by introducing section 31(B), on requirements for institutions to maintain a next of kin register for all account holders be declared unconstitutional for violating the right to privacy.
8. It follows that the impugned provisions birthed by section 63 of the Finance Act, 2018 is section 31A of the Banking Act and not section 31(c) as pronounced by the Court.
9. In the Judgment of 20 th June, 2019, the leaned Judge ordered as follows at paragraph 82:
“82. Having come to the conclusion that I have, I find that the petition is meritorious and I proceed to make the following orders:
a) upon interpretation of the Constitution on whether section 63 of the Finance Act, 2018 and section 33( c ) of the Banking Act are in conflict, with Article 31( c) of the Constitution, I find and hold that section 63 of the Finance Act, 2018 and section 31( c) of the Banking Act are in conflict with Article 31( c) of the Constitution.
b) Upon interpretation and determination on whether the 2 nd respondent by introducing major amendment, which was contrary to the purpose of the Bill during the 2 nd and 3 rd reading of the Finance Bill, 2018, I find that the 2 nd respondent breached the national values and principles enshrined under Article 10 of the Constitution for failing to subject the amendments to public participation.
c) A declaration be and is hereby issued to the effect that section 63 of the Finance Act, 2018 (Act No. 10 of 2018) and consequently section 31(c) of the Banking Act are null and void and of no legal effect for being unconstitutional.
d) A declaration be and is hereby issued to the effect that section 63 of the Finance Act, 2018 and consequently section 31(c) of the banking Act is invalid for being vague and ambiguous.
e) The matter was brought in public interest I direct that each party to bear its own costs.
10. The petitioner is back to court vide a notice of motion dated 29 th June, 2026 and filed under certificate of urgency, seeking the following orders:
1. That the application be certifies urgent
2. This honourable Court be pleased, pursuant to section 99 of the Civil procedure Act and the Court’s inherent jurisdiction, to correct the accidental slip and or miscitations appearing in paragraph 82(a), 82( c) and 82(d) of the judgment delivered on 20 th June, 2019, and in any other order or decree extracted therefrom, by deleting the references to section 33( c) and section 31( c) of the banking Act and substituting therefor a reference to section 31A of the ABNKING Act as inserted by section 63 of the Finance Act, 2018, being the same provision now appearing in the revised edition of the Banking Act as section 31B.
3. For avoidance of doubt, this Honourable ourt be pleased to clarify that the declarations and findings made in the Judgment delivered on 20 th June, 2019 were directed at the next of kin provision introduced into the Banking Act by section 63 of the Finance Act, 2018, which presently appears in the revised edition of the Banking Act as section 31B.
4. The Deputy Registrar be directed to issue a corrected order and or decree reflecting the correction and clarification granted herein.
5. Costs be in the cause.
11. The grounds upon which the application is predicated are as follows, supported by the affidavit sworn by Raimond Molenje the Chief Executive Officer of the petitioner/ applicant herein:
I. The petition challenged section 63 of the Finance Act, 2018, which inserted into the Banking Act, the next of kin provision then enacted as section 31A.
II. The body and reasoning of the judgment delivered on 20 th June, 2019 unmistakably addressed that next of kin provision and declared section 63 of the Finance Act, 2018 unconstitutional.
III. The references in portions of the formal orders to section 33(c ) and section 31( c) of the Banking Act are self-evident accidental miscitations.
IV. The same next of kin provision now appears in the revised edition of the Banking Act as section 31B and the present miscitation has generated uncertainty as to the effect of the judgment.
V. The correction sought does not reopen, vary or reargue the merits of the petition, but merely aligns the formal record with the clear substance and intention of the Court’s Judgment.
VI. It is just, expedient and in the interest of certainty and proper administration of justice that the record be corrected and certified.
12. That is what is before this court for determination.
13. The court directed the petitioner / applicant to serve the respondents and the interested party with the application and they appeared through their respective counsel and intimated that having perused the application and the error which was sought to be corrected, they had no objection to the application being allowed hence this ruling which follows the instant order made, allowing the application.
14. I have considered the application in line the above cited Section 99 of the Civil Procedure Act which empowers the Court to correct its own error in a judgment. I have also considered the principles that guide courts in the correction of errors in judgment, so as to avoid sitting on appeal of the court’s own decision. This caution is important because, once a court delivers a judgment, it becomes functus officio and cannot revisit the judgment except where an application for review/setting aside and or correction of errors in the judgment is made as is, in the present case.
15. The principle behind section 99 of the Civil Procedure Act is actus curiae nemesis gravabit , meaning, nobody shall be prejudiced by an act of court.
16. Thus, the Court is not powerless to grant relief when the ends of justice and equity so demand, where it is established that the judgment does not reflect the intention of the Court. In such circumstances, the Court exercises inherent powers vested in it, which power or discretion is wide as observed by the Supreme Court in the case of Fredrick Otieno Outa v Jared Odoyo Okello (supra).
17. Having considered the application and perused the judgment delivered on 20 th June, 2019, I am satisfied that there is an error in the citation of section 63 of the Finance Act 2018 which amended the Banking Act by inserting a new section 31A immediately after section 31 by introducing a mandatory requirement for banks or financial institutions to maintain a register containing particulars of the next of kin of all customers operating such accounts and to update that register on an annual basis. The new section 31A also provided for penalties for contravening the requirement.
18. In my view, the “slip rule” permits me to correct the error since the same is apparent on the face of the Judgment of 20 th June, 2019. The error is so obvious that its correction cannot generate any honest controversy regarding the decision of the Court. Further, the error is of such nature that its correction would not change the substance of the Judgment or alter the clear intention of the Court.
19. I am further satisfied that invoking “slip rule” herein does not and cannot be interpreted to amount to usurping of jurisdiction or sitting on appeal over this Court’s own Judgment.
20. I am further fortified on this point by the East African Court of Appeal decision in the case of Vallabhdas Karsandas Raniga v. Mansukhlal Jivraj and Others [1965] EA 780, where it was stated as follows:
“Section 3(2) of the Appellate Jurisdiction Act confers on the Court of Appeal the same jurisdiction to amend judgments, decrees and orders that the High Court has under section 99 of the Civil Procedure Act, making it unnecessary to look to the inherent powers of the court. The words “at any time” in section 99 clearly allow the power of amendment to be exercised after the issue of a formal order …. “Slip orders” are made to rectify omissions resulting from the failure of counsel to ask for costs and other matters to which their clients are entitled … A court will only apply the slip rules where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention. In the present case, if the facts had been before the court when judgment was given on appeal, the court would, on application or indeed of its own motion, have made the order for refund, now sought, which was necessarily consequential on the decision on the main issues.”
[Emphasis mine]
21. In this case, I note that the slip was on the part of the Court referring to wrong provisions of the Banking Act which had been introduced by the Finance Act, 2018, requiring Banking and financial institutions regulated by Central Bank to maintain particulars of next of kin of their customers and penalties for non-compliance with that requirement.
22. It was this newly inserted section 31A of the Banking Act, by section 63 of the Finance Act, 2018 that was declared unconstitutional, null and void.
23. Instead, the Court cited sections 33( c) and 31 ( c) of the Banking Act in the body of the Judgment and in the final orders at paragraph 82 (a), ( c) and ( d).
24. In so citing, from my reading of the said judgment, the learned Judge intended to refer to section 31A which is now section 31B of the revised edition of the Banking Act.
25. Accordingly, I hereby correct the judgment delivered on 20 th June 2019 by A.J. Makau J (as he then was) by deleting the references to “section 33(c)” and “section 31(c)” of the Banking Act and substituting therefor a reference to section 31A of the Banking Act as inserted by section 63 of the Finance Act, 2018.
26. I further clarify the judgment to the effect that the declarations and findings made in the said judgment delivered on 20 th June, 2019 were directed at the next of kin provision introduced into the Banking Act by section 63 of the Finance Act, 2018, which presently appears in the revised edition of the Banking Act as section 31B.
27. The petitioner is directed to draft the corrected decree and serve the same upon the respondents and the interested party for approval pursuant to the provisions of Order 21 Rule 8 of the Civil Procedure Rules which provides:
8. Preparation and dating of decrees and orders [Order 21, rule 8]
(1) A decree shall bear the date of the day on which the judgment was delivered.
(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly. (4) On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.
(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court and reference to the registrar and judge in the subrules shall refer to magistrate.
(6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn up, shall be prepared and signed in like manner as a decree.
(7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order.
28. Upon such approval of the corrected decree and the parties submitting to court such approved decree, the Deputy Registrar of this Court is directed to issue a corrected decree reflecting the correction and clarification granted herein.
29. I make no orders as to costs of the application dated 29 th June, 2026 which is hereby allowed in the terms stated in this ruling.
30. This file is hereby closed.
Dated, Signed and Delivered virtually at Nairobi this 10 th Day of July, 2026
R.E. ABURILI
JUDGE
Page 2 of 2
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 427 OF 2018
KENYA BANKERS ASSOCIATION……....... PETITIONER/APPLICANT
VERSUS
THE HONOURABLE ATTORNEY GENERAL……….1 ST RESPONDENT
THE NATIONAL ASSEMBLY…………………….……2 ND RESPONDENT
AND
CENTRAL BANK OF KENYA……………………...INTERESTED PARTY
RULING ON AN APPLICATION UNDER SECTION 99 OF THE CIVIL PROCEDURE ACT FOR CORRECTION OF A JUDGMENT
1. Section 99 of the Civil Procedure Act provides one of the post judgment remedies called the Slip Rule. The section stipulates:
99. Amendment of judgments, decrees or orders
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 .
2. Under the above section, clerical or arithmetical mistakes arising therein from an accidental slip or omission at any time whether before or after judgment can be at the instance of the court on it own motion or on application of any interested party be corrected, so as to give effect to what was the intention of court when judgment was given.
3. On the nature and scope of the court’s powers under the slip rule, the Court of Appeal in Dominic Alois George Omenye t/a Omenye & Associates v Prime Bank Limited [2017] eKLR stated as follows:
“We start by asking ourselves the question, what is the true purpose of Section 99 of the Civil Procedure Act on which the application before Amin, J. was founded? In Raniga v. Jivraj [1965] EA 700, the predecessor of this Court was considering an application to vary its judgment. The Court stated that under section 3(2) of the Appellate jurisdiction Act, it had the same jurisdiction to amend judgments and orders that the High Court has under section 99 of the Civil Procedure Act. Regarding that jurisdiction, the Court was emphatic that the power to correct errors will only be made where the court is fully satisfied that it is giving effect to intention of the court at the time when judgment was given, or in the case where a matter was overlooked, where it is satisfied beyond doubt that as to the order which it would have made had the matter been brought to its attention.
Subsequently in Lakhamshi Brothers Ltd v R. Raja & Sons [1966] EA 313, Sir Charles Newbold, P., speaking for a unanimous Court said:
“Indeed there has been a multitude of decisions by this Court, on what is known generally as the slip rule, in which the inherent jurisdiction of the court to recall a judgment in order to give effect to its manifest intention has been held to exist. The circumstances however, of the exercise of any such jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to judgment to give effect to the intention of the court when it gave its judgment or to give effect to what clearly would have been the intention of the court had the matter not inadvertently been omitted.”
Githinji, Ag. J. (as he then was), was of the same mind in Davda v. Ahmed & Others [1978] KLR 665, when he stated that the error or omission under section 99 must be an error in expressing the manifest intention of the Court.”
4. Thus, to determine whether the slip rule can be applied, the intention of the court in its judgment is important.
5. The above power of the Court is commonly known as the “slip rule”. In applying the rule, the Supreme Court in the case of Fredrick Otieno Outa v Jared Odoyo Okello and 3 others [2017] eKLR guided as follows:
“By its nature, the slip rule permits a court of law to correct errors that are apparent on the face of the judgment, ruling or order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the judgment or decision of the court. By the same token, such errors must be of such nature that their correction would not change the substance of the judgment or alter the clear intention of the court. In other words, the slip rule does not confer upon a court any jurisdiction or powers to sit on appeal over its own judgment, or, to extensively review such judgment as to substantially alter it. Indeed, as our comparative analysis of the approaches by other superior court demonstrates, this is the true import of the slip rule.”
6. Applying the above principles to this case, on 20 th June 2019, this Court, differently constituted, by Hon Mr. Justice J.A. Makau (as he then was) delivered a judgment which is also reported on the kenyalaw.org finding that petition dated to be meritorious and made the following orders:
7. In the petition subject of the judgment, the petitioner had sought for a declaration that section 63 of the Finance Act, 2018 which had amended the Banking Act by introducing section 31(B), on requirements for institutions to maintain a next of kin register for all account holders be declared unconstitutional for violating the right to privacy.
8. It follows that the impugned provisions birthed by section 63 of the Finance Act, 2018 is section 31A of the Banking Act and not section 31(c) as pronounced by the Court.
9. In the Judgment of 20 th June, 2019, the leaned Judge ordered as follows at paragraph 82:
“82. Having come to the conclusion that I have, I find that the petition is meritorious and I proceed to make the following orders:
a) upon interpretation of the Constitution on whether section 63 of the Finance Act, 2018 and section 33( c ) of the Banking Act are in conflict, with Article 31( c) of the Constitution, I find and hold that section 63 of the Finance Act, 2018 and section 31( c) of the Banking Act are in conflict with Article 31( c) of the Constitution.
b) Upon interpretation and determination on whether the 2 nd respondent by introducing major amendment, which was contrary to the purpose of the Bill during the 2 nd and 3 rd reading of the Finance Bill, 2018, I find that the 2 nd respondent breached the national values and principles enshrined under Article 10 of the Constitution for failing to subject the amendments to public participation.
c) A declaration be and is hereby issued to the effect that section 63 of the Finance Act, 2018 (Act No. 10 of 2018) and consequently section 31(c) of the Banking Act are null and void and of no legal effect for being unconstitutional.
d) A declaration be and is hereby issued to the effect that section 63 of the Finance Act, 2018 and consequently section 31(c) of the banking Act is invalid for being vague and ambiguous.
e) The matter was brought in public interest I direct that each party to bear its own costs.
10. The petitioner is back to court vide a notice of motion dated 29 th June, 2026 and filed under certificate of urgency, seeking the following orders:
1. That the application be certifies urgent
2. This honourable Court be pleased, pursuant to section 99 of the Civil procedure Act and the Court’s inherent jurisdiction, to correct the accidental slip and or miscitations appearing in paragraph 82(a), 82( c) and 82(d) of the judgment delivered on 20 th June, 2019, and in any other order or decree extracted therefrom, by deleting the references to section 33( c) and section 31( c) of the banking Act and substituting therefor a reference to section 31A of the ABNKING Act as inserted by section 63 of the Finance Act, 2018, being the same provision now appearing in the revised edition of the Banking Act as section 31B.
3. For avoidance of doubt, this Honourable ourt be pleased to clarify that the declarations and findings made in the Judgment delivered on 20 th June, 2019 were directed at the next of kin provision introduced into the Banking Act by section 63 of the Finance Act, 2018, which presently appears in the revised edition of the Banking Act as section 31B.
4. The Deputy Registrar be directed to issue a corrected order and or decree reflecting the correction and clarification granted herein.
5. Costs be in the cause.
11. The grounds upon which the application is predicated are as follows, supported by the affidavit sworn by Raimond Molenje the Chief Executive Officer of the petitioner/ applicant herein:
I. The petition challenged section 63 of the Finance Act, 2018, which inserted into the Banking Act, the next of kin provision then enacted as section 31A.
II. The body and reasoning of the judgment delivered on 20 th June, 2019 unmistakably addressed that next of kin provision and declared section 63 of the Finance Act, 2018 unconstitutional.
III. The references in portions of the formal orders to section 33(c ) and section 31( c) of the Banking Act are self-evident accidental miscitations.
IV. The same next of kin provision now appears in the revised edition of the Banking Act as section 31B and the present miscitation has generated uncertainty as to the effect of the judgment.
V. The correction sought does not reopen, vary or reargue the merits of the petition, but merely aligns the formal record with the clear substance and intention of the Court’s Judgment.
VI. It is just, expedient and in the interest of certainty and proper administration of justice that the record be corrected and certified.
12. That is what is before this court for determination.
13. The court directed the petitioner / applicant to serve the respondents and the interested party with the application and they appeared through their respective counsel and intimated that having perused the application and the error which was sought to be corrected, they had no objection to the application being allowed hence this ruling which follows the instant order made, allowing the application.
14. I have considered the application in line the above cited Section 99 of the Civil Procedure Act which empowers the Court to correct its own error in a judgment. I have also considered the principles that guide courts in the correction of errors in judgment, so as to avoid sitting on appeal of the court’s own decision. This caution is important because, once a court delivers a judgment, it becomes functus officio and cannot revisit the judgment except where an application for review/setting aside and or correction of errors in the judgment is made as is, in the present case.
15. The principle behind section 99 of the Civil Procedure Act is actus curiae nemesis gravabit , meaning, nobody shall be prejudiced by an act of court.
16. Thus, the Court is not powerless to grant relief when the ends of justice and equity so demand, where it is established that the judgment does not reflect the intention of the Court. In such circumstances, the Court exercises inherent powers vested in it, which power or discretion is wide as observed by the Supreme Court in the case of Fredrick Otieno Outa v Jared Odoyo Okello (supra).
17. Having considered the application and perused the judgment delivered on 20 th June, 2019, I am satisfied that there is an error in the citation of section 63 of the Finance Act 2018 which amended the Banking Act by inserting a new section 31A immediately after section 31 by introducing a mandatory requirement for banks or financial institutions to maintain a register containing particulars of the next of kin of all customers operating such accounts and to update that register on an annual basis. The new section 31A also provided for penalties for contravening the requirement.
18. In my view, the “slip rule” permits me to correct the error since the same is apparent on the face of the Judgment of 20 th June, 2019. The error is so obvious that its correction cannot generate any honest controversy regarding the decision of the Court. Further, the error is of such nature that its correction would not change the substance of the Judgment or alter the clear intention of the Court.
19. I am further satisfied that invoking “slip rule” herein does not and cannot be interpreted to amount to usurping of jurisdiction or sitting on appeal over this Court’s own Judgment.
20. I am further fortified on this point by the East African Court of Appeal decision in the case of Vallabhdas Karsandas Raniga v. Mansukhlal Jivraj and Others [1965] EA 780, where it was stated as follows:
“Section 3(2) of the Appellate Jurisdiction Act confers on the Court of Appeal the same jurisdiction to amend judgments, decrees and orders that the High Court has under section 99 of the Civil Procedure Act, making it unnecessary to look to the inherent powers of the court. The words “at any time” in section 99 clearly allow the power of amendment to be exercised after the issue of a formal order …. “Slip orders” are made to rectify omissions resulting from the failure of counsel to ask for costs and other matters to which their clients are entitled … A court will only apply the slip rules where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention. In the present case, if the facts had been before the court when judgment was given on appeal, the court would, on application or indeed of its own motion, have made the order for refund, now sought, which was necessarily consequential on the decision on the main issues.”
[Emphasis mine]
21. In this case, I note that the slip was on the part of the Court referring to wrong provisions of the Banking Act which had been introduced by the Finance Act, 2018, requiring Banking and financial institutions regulated by Central Bank to maintain particulars of next of kin of their customers and penalties for non-compliance with that requirement.
22. It was this newly inserted section 31A of the Banking Act, by section 63 of the Finance Act, 2018 that was declared unconstitutional, null and void.
23. Instead, the Court cited sections 33( c) and 31 ( c) of the Banking Act in the body of the Judgment and in the final orders at paragraph 82 (a), ( c) and ( d).
24. In so citing, from my reading of the said judgment, the learned Judge intended to refer to section 31A which is now section 31B of the revised edition of the Banking Act.
25. Accordingly, I hereby correct the judgment delivered on 20 th June 2019 by A.J. Makau J (as he then was) by deleting the references to “section 33(c)” and “section 31(c)” of the Banking Act and substituting therefor a reference to section 31A of the Banking Act as inserted by section 63 of the Finance Act, 2018.
26. I further clarify the judgment to the effect that the declarations and findings made in the said judgment delivered on 20 th June, 2019 were directed at the next of kin provision introduced into the Banking Act by section 63 of the Finance Act, 2018, which presently appears in the revised edition of the Banking Act as section 31B.
27. The petitioner is directed to draft the corrected decree and serve the same upon the respondents and the interested party for approval pursuant to the provisions of Order 21 Rule 8 of the Civil Procedure Rules which provides:
8. Preparation and dating of decrees and orders [Order 21, rule 8]
(1) A decree shall bear the date of the day on which the judgment was delivered.
(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly. (4) On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.
(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court and reference to the registrar and judge in the subrules shall refer to magistrate.
(6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn up, shall be prepared and signed in like manner as a decree.
(7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order.
28. Upon such approval of the corrected decree and the parties submitting to court such approved decree, the Deputy Registrar of this Court is directed to issue a corrected decree reflecting the correction and clarification granted herein.
29. I make no orders as to costs of the application dated 29 th June, 2026 which is hereby allowed in the terms stated in this ruling.
30. This file is hereby closed.
Dated, Signed and Delivered virtually at Nairobi this 10 th Day of July, 2026
R.E. ABURILI
JUDGE
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