APPLICANTS CASE
Paul Mwaniki Gicheri, suing as the personal representative of the Estate of the late Gichemi Njuguna (hereinafter referred to as to applicant) has come to this court seeking a review of the judgment of this court delivered on 14th March, 2024 on reasons that there is an error apparent on the face of the record in the description of the suit parcels of land as contained in the said Judgment and decree, wherein the parcels were erroneously described as: Bahati/Kabatini 1/742, Bahati/Kabatini 1/743, Bahati Kabatini 1/744, Bahati/Kabatini 1/745, Bahati/Kabatini 1/746, Bahati/Kabatini1/747,Bahati/Kabatini1/748,Bahati/Kabatini 1/749, Bahati/Kabatini 1/750, Bahati/Kabatini 1/751, Bahati/Kabatini 1/752, And Bahati/Kabatini 1/753.
According to the applicant, there are sufficient reasons to warrant review of the said Judgment and correction of the decree accordingly.
The applicant prays that in its place, the following be adopted as the determination of this Honorable Court as regards the description of the suit parcels of land, namely that all references in the Judgment and decree be substituted with the correct parcel descriptions being:-
Bahati/Kabatini 1/11742, Bahati/Kabatini 1/11743, Bahati/Kabatini 1/11744, Bahati/Kabatini 1/11745, Bahati/Kabatini 1/11746, Bahati/Kabatini 1/11747, Bahati/Kabatini 1/11748, Bahati/Kabatini1/11749, Bahati/Kabatini 1/11750, Bahati/Kabatini 1/11751, Bahati/Kabatini 1/11752, And Bahati/Kabatini1/11753 respectively.
The applicant prays that the costs of this application be provided for. The applications is based on grounds that this Honourable Court delivered its Judgment on 14th March 2024, wherein it was declared, inter alia, that the Plaintiff/Applicant herein had acquired ownership by way of adverse possession over all those parcels of land described in the pleadings, judgment, and resultant decree as Bahati/Kabatini 1/742, Bahati/Kabatini 1/743,Bahati/Kabatini1/744,Bahati/Kabatini1/745, Bahati/Kabatini1/746,Bahati/Kabatini1/747, Bahati/Kabatini1/748,Bahati/Kabatini1/749, Bahati/Kabatini1/750,Bahati/Kabatini1/751,Bahati/Kabatini 1/752, And Baha Ti/Kabatini 1/753.
The Applicant has recently discovered that the suit parcels have been erroneously described. It was only upon close scrutiny of the official records and title deeds that the Applicant became aware that the numbering reflected in the judgment and decree did not correspond to any existing registered parcels in the land register.
The said description of the suit properties arose from an inadvertent clerical or typographical error carried from the initial pleadings and subsequently replicated in the final judgment and decree, whereas the correct and lawful parcel numbers are, Bahati/Kabatini 1/11742, Bahati/Kabatini 1/11743, Bahati/Kabatini 1/11744, Bahati/Kabatini 1/11745, Bahatvkabatini 1/11746, Bahati/Kabatini 1/11747, Bahati/Kabatini 1/11748, Bahati/Kabatini 1/11749, Bahati/Kabatini 1/11750, Bahati/Kabatini 1/11751, Bahati/Kabatini 1/11752, And Bahati/Kabatini 1/11753 as confirmed from the Land Registry records and the Plaintiffs/Applicant's evidence on record.
The applicant states that the copies of the twelve title deeds produced in evidence, all reflect the correct description of the suit parcels of land as Bahati/Kabatini 1/11742 To 1/11753, confirming the true subject matter of the proceedings. He depones that the Defendants' counterclaim likewise referred to the same parcels using the correct numbering, thereby affirming that the omission of the prefix "11" in the judgment and decree was purely inadvertent and clerical in nature.
The said error is manifest on the face of the record, and its continued existence materially affects the clarity, enforceability, and legal precision of the decree, thereby creating an ambiguity that frustrates the execution of the very judgement delivered o 14th March 2024.
The applicant contends that the error was purely clerical and arose through inadvertence and as such, amenable to correction through the Court's review jurisdiction as provided under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The correction sought does not seek to vary or alter the substance, intent, o outcome of the Judgment, but merely to align the decree with the true and correct identification of the parcels of land that were the subject matter of the proceedings and the evidence tendered before Court.
It is in the interests of accuracy, consistency, and the integrity of the judicial record that the misdescribed parcel numbers be corrected to reflect the actual parcels in dispute, being BAHATI/KABATINI 1/11742, BAHATI/KABATINI 1/11743, BAHATI/KABATINI 1/11744, BAHATI/KABATINI 1/11745, BAHATI/KABATINI 1/11746, BAHATI/KABATINI1/11747, BAHATI/KABATINI 1/11748, BAHATI/KABATINI 1/11749, BAHATI/KABATINI 1/11750, BAHATI/KABATINI 1/11751, BAHATI/KABATINI 1/11752, and BAHATI/KABATINI 1/11753 so as to give effect to the Court's intention and to facilitate lawful execution of the decree.
The applicant believes that no prejudice whatsoever shall be occasioned to the Defendant/Respondent by the review sought herein, as the review merely seeks to ensure that the decree accords with the factual and documentary evidence on record, and that the transfer and registration process proceeds lawfully and without procedural impediment. The failure to correct the misdescription would result in grave prejudice to the Applicant, who, despite having obtained a favourable judgment, remains unable to enjoy the fruits thereof due to the discrepancy between the decree and the registerable parcels of land at the Land Registrar's Office.
He states that the delay in bringing this Application has been neither deliberate nor inordinate, but has been occasioned solely by the time required to identify the misdescription, the same having only come to light upon commencement of the execution process on or around September 2025. This Honorable Court retains inherent jurisdiction to review, correct, or vary its record to rectify clerical or accidental errors in the interest of justice, and to ensure that its decrees and orders are not rendered inoperative or incapable of enforcement due to technical inaccuracies.
It is in the overriding interest of justice, equity, and sound judicial administration that the judgment and decree be reviewed and the misdescription rectified so as to reflect the correct parcels of land and preserve the sanctity and executability of this Court's decision.
It is therefore just, fair, and expedient that this Honorable Court allows the Application as prayed to give full effect to its intention, prevent miscarriage of justice, and facilitate the lawful enjoyment of the fruits of the judgment by the Plaintiff/Applicant.
RESPONCE
The application is opposed by respondents vide affidavit of Joseph Karanja Mbugua on grounds that the Originating Summons Dated 19th September 2012 and all the properties clearly set out therein (BAHATI/KABATINI BLOCK 1 /743 to 753) are the very same properties that the Court delivered itself on and are the very same properties reflected in the Decree.
According to Karanja Mbugua, the respondents advocate, the Plaintiff's oral and documentary evidence squarely related to the very same properties contained in the Originating Summons, his Affidavit in Support of the Originating Summons and in the judgment and the Decree. The review sought should be disallowed because a Decree should be in terms of the Judgement and that the Judgement in this case was delivered on the basis of the Pleadings which bind the parties in the case and on the evidence given during the Hearing. The Decree should not be reviewed to the extent of differing with the terms of the Judgement.
The respondent argues that this Court cannot grant a Review of the Decree that will substantially and fundamentally alter the Originating Summons, Affidavit in Support of the Originating Summons and the Evidence adduced in Court. There exists no error apparent on the face of the record because the Decree and Judgement flow from the Applicant's / Plaintiff's own pleadings and evidence adduced during the hearing.
There is no discovery of any new evidence that has been set out and which was not within the Applicant's awareness at the time of Hearing this case. The new Numbers of the Parcels of land sought to be introduced in this matter at the Decree stage are not the same properties that the Defendants were sued for nor are they the same properties that they defended. It is not permissible for the Court to Review the Decree or its Judgement that shall not be in agreement with the pleadings and the evidence.
Judgement was delivered on 14th march 2024 and the Application filed on 28th October 2025 (a period of nineteen months) which is inordinately a very long period of time which has not been explained out.
ANALYSIS AND DETERMINATION
An application for a review of judgment based on an error apparent on the face of the record is governed by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 1.
Section 80 of the Civil Procedure Act Cap 21 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“1. (1) Any person considering himself aggrieved—
a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
In Republic v Public Procurement Administrative Review Board & 2 others [2018] e KLR it was held: -
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”
In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal held: -
“Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason……………………….”
Sarder Mohamed v. Charan Singh Nand Sing and Another (1959) EA 793 where the High Court held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate.
Discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608. had this to say:-
“the power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ............... means a reason sufficiently analogous to those specified in the rule”
In Tokesi Mambili and others vs Simion Litsanga the Court held as follows: -
i. In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.
An error apparent on the face of the record must be:
1. Self-evident and manifest - It should be so clear that no court would permit such an error to remain on the record
2. Prima facie visible - It must not require detailed examination or elaborate argument to establish it 1
3. Not requiring long reasoning - If detecting the error requires long debate and a process of reasoning, it cannot be treated as an error apparent on the face of the record 3
I have considered the application and the replying affidavit and do find that indeed there is an error in the pleadings and the judgment of this court in the definition of the parcels of land. The court notes however, that the correct parcels of land are defined in the counter claim and the suit filed in the lower court being the Chief Magistrates Court case no 46 of 2014 between the parties herein. This lower court suit was transferred and consolidated with this case on the 4th of October 2018. The error in the pleadings and judgment is so apparent on the face of the record that it can’t be ignored. The applicant is prejudiced by this error because if allowed he will remain with a judgment on paper which cannot be enforced. I do find that there was misdescription of the property in the pleadings and the judgment. The respondent agrees with the fact that there was misdescription but states that the court cannot alter the judgment to vary with the pleadings. Article 159 is applicable to this matter in that the court should not give undue regard procedural technicalities. This court should do substantive justice to the parties herein. The application is merited and allowed.
I do grant orders that all references in the Judgment and decree be substituted with the correct parcel descriptions being:-
BAHATI/KABATINI 1/11742, BAHATI/KABATINI 1/11743, BAHATI/KABATINI 1/11744, BAHATI/KABATINI 1/11745, BAHATI/KABATINI 1/11746, BAHATI/KABATINI 1/11747, BAHATI/KABATINI 1/11748, BAHATI/KABATINI1/11749, BAHATI/KABATINI 1/11750, BAHATI/KABATINI 1/11751, BAHATI/KABATINI 1/11752, and BAHATI/KABATINI1/11753 respectively. There be no orders as to costs.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY IN NAKURU, THIS 11TH OF DECEMBER 2025.
A.O.OMBWAYO
JUDGE
Paul Mwaniki Gicheri, suing as the personal representative of the Estate of the late Gichemi Njuguna (hereinafter referred to as to applicant) has come to this court seeking a review of the judgment of this court delivered on 14th March, 2024 on reasons that there is an error apparent on the face of the record in the description of the suit parcels of land as contained in the said Judgment and decree, wherein the parcels were erroneously described as: Bahati/Kabatini 1/742, Bahati/Kabatini 1/743, Bahati Kabatini 1/744, Bahati/Kabatini 1/745, Bahati/Kabatini 1/746, Bahati/Kabatini1/747,Bahati/Kabatini1/748,Bahati/Kabatini 1/749, Bahati/Kabatini 1/750, Bahati/Kabatini 1/751, Bahati/Kabatini 1/752, And Bahati/Kabatini 1/753.
According to the applicant, there are sufficient reasons to warrant review of the said Judgment and correction of the decree accordingly.
The applicant prays that in its place, the following be adopted as the determination of this Honorable Court as regards the description of the suit parcels of land, namely that all references in the Judgment and decree be substituted with the correct parcel descriptions being:-
Bahati/Kabatini 1/11742, Bahati/Kabatini 1/11743, Bahati/Kabatini 1/11744, Bahati/Kabatini 1/11745, Bahati/Kabatini 1/11746, Bahati/Kabatini 1/11747, Bahati/Kabatini 1/11748, Bahati/Kabatini1/11749, Bahati/Kabatini 1/11750, Bahati/Kabatini 1/11751, Bahati/Kabatini 1/11752, And Bahati/Kabatini1/11753 respectively.
The applicant prays that the costs of this application be provided for. The applications is based on grounds that this Honourable Court delivered its Judgment on 14th March 2024, wherein it was declared, inter alia, that the Plaintiff/Applicant herein had acquired ownership by way of adverse possession over all those parcels of land described in the pleadings, judgment, and resultant decree as Bahati/Kabatini 1/742, Bahati/Kabatini 1/743,Bahati/Kabatini1/744,Bahati/Kabatini1/745, Bahati/Kabatini1/746,Bahati/Kabatini1/747, Bahati/Kabatini1/748,Bahati/Kabatini1/749, Bahati/Kabatini1/750,Bahati/Kabatini1/751,Bahati/Kabatini 1/752, And Baha Ti/Kabatini 1/753.
The Applicant has recently discovered that the suit parcels have been erroneously described. It was only upon close scrutiny of the official records and title deeds that the Applicant became aware that the numbering reflected in the judgment and decree did not correspond to any existing registered parcels in the land register.
The said description of the suit properties arose from an inadvertent clerical or typographical error carried from the initial pleadings and subsequently replicated in the final judgment and decree, whereas the correct and lawful parcel numbers are, Bahati/Kabatini 1/11742, Bahati/Kabatini 1/11743, Bahati/Kabatini 1/11744, Bahati/Kabatini 1/11745, Bahatvkabatini 1/11746, Bahati/Kabatini 1/11747, Bahati/Kabatini 1/11748, Bahati/Kabatini 1/11749, Bahati/Kabatini 1/11750, Bahati/Kabatini 1/11751, Bahati/Kabatini 1/11752, And Bahati/Kabatini 1/11753 as confirmed from the Land Registry records and the Plaintiffs/Applicant's evidence on record.
The applicant states that the copies of the twelve title deeds produced in evidence, all reflect the correct description of the suit parcels of land as Bahati/Kabatini 1/11742 To 1/11753, confirming the true subject matter of the proceedings. He depones that the Defendants' counterclaim likewise referred to the same parcels using the correct numbering, thereby affirming that the omission of the prefix "11" in the judgment and decree was purely inadvertent and clerical in nature.
The said error is manifest on the face of the record, and its continued existence materially affects the clarity, enforceability, and legal precision of the decree, thereby creating an ambiguity that frustrates the execution of the very judgement delivered o 14th March 2024.
The applicant contends that the error was purely clerical and arose through inadvertence and as such, amenable to correction through the Court's review jurisdiction as provided under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The correction sought does not seek to vary or alter the substance, intent, o outcome of the Judgment, but merely to align the decree with the true and correct identification of the parcels of land that were the subject matter of the proceedings and the evidence tendered before Court.
It is in the interests of accuracy, consistency, and the integrity of the judicial record that the misdescribed parcel numbers be corrected to reflect the actual parcels in dispute, being BAHATI/KABATINI 1/11742, BAHATI/KABATINI 1/11743, BAHATI/KABATINI 1/11744, BAHATI/KABATINI 1/11745, BAHATI/KABATINI 1/11746, BAHATI/KABATINI1/11747, BAHATI/KABATINI 1/11748, BAHATI/KABATINI 1/11749, BAHATI/KABATINI 1/11750, BAHATI/KABATINI 1/11751, BAHATI/KABATINI 1/11752, and BAHATI/KABATINI 1/11753 so as to give effect to the Court's intention and to facilitate lawful execution of the decree.
The applicant believes that no prejudice whatsoever shall be occasioned to the Defendant/Respondent by the review sought herein, as the review merely seeks to ensure that the decree accords with the factual and documentary evidence on record, and that the transfer and registration process proceeds lawfully and without procedural impediment. The failure to correct the misdescription would result in grave prejudice to the Applicant, who, despite having obtained a favourable judgment, remains unable to enjoy the fruits thereof due to the discrepancy between the decree and the registerable parcels of land at the Land Registrar's Office.
He states that the delay in bringing this Application has been neither deliberate nor inordinate, but has been occasioned solely by the time required to identify the misdescription, the same having only come to light upon commencement of the execution process on or around September 2025. This Honorable Court retains inherent jurisdiction to review, correct, or vary its record to rectify clerical or accidental errors in the interest of justice, and to ensure that its decrees and orders are not rendered inoperative or incapable of enforcement due to technical inaccuracies.
It is in the overriding interest of justice, equity, and sound judicial administration that the judgment and decree be reviewed and the misdescription rectified so as to reflect the correct parcels of land and preserve the sanctity and executability of this Court's decision.
It is therefore just, fair, and expedient that this Honorable Court allows the Application as prayed to give full effect to its intention, prevent miscarriage of justice, and facilitate the lawful enjoyment of the fruits of the judgment by the Plaintiff/Applicant.
RESPONCE
The application is opposed by respondents vide affidavit of Joseph Karanja Mbugua on grounds that the Originating Summons Dated 19th September 2012 and all the properties clearly set out therein (BAHATI/KABATINI BLOCK 1 /743 to 753) are the very same properties that the Court delivered itself on and are the very same properties reflected in the Decree.
According to Karanja Mbugua, the respondents advocate, the Plaintiff's oral and documentary evidence squarely related to the very same properties contained in the Originating Summons, his Affidavit in Support of the Originating Summons and in the judgment and the Decree. The review sought should be disallowed because a Decree should be in terms of the Judgement and that the Judgement in this case was delivered on the basis of the Pleadings which bind the parties in the case and on the evidence given during the Hearing. The Decree should not be reviewed to the extent of differing with the terms of the Judgement.
The respondent argues that this Court cannot grant a Review of the Decree that will substantially and fundamentally alter the Originating Summons, Affidavit in Support of the Originating Summons and the Evidence adduced in Court. There exists no error apparent on the face of the record because the Decree and Judgement flow from the Applicant's / Plaintiff's own pleadings and evidence adduced during the hearing.
There is no discovery of any new evidence that has been set out and which was not within the Applicant's awareness at the time of Hearing this case. The new Numbers of the Parcels of land sought to be introduced in this matter at the Decree stage are not the same properties that the Defendants were sued for nor are they the same properties that they defended. It is not permissible for the Court to Review the Decree or its Judgement that shall not be in agreement with the pleadings and the evidence.
Judgement was delivered on 14th march 2024 and the Application filed on 28th October 2025 (a period of nineteen months) which is inordinately a very long period of time which has not been explained out.
ANALYSIS AND DETERMINATION
An application for a review of judgment based on an error apparent on the face of the record is governed by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 1.
Section 80 of the Civil Procedure Act Cap 21 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“1. (1) Any person considering himself aggrieved—
a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
In Republic v Public Procurement Administrative Review Board & 2 others [2018] e KLR it was held: -
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”
In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal held: -
“Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason……………………….”
Sarder Mohamed v. Charan Singh Nand Sing and Another (1959) EA 793 where the High Court held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate.
Discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608. had this to say:-
“the power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ............... means a reason sufficiently analogous to those specified in the rule”
In Tokesi Mambili and others vs Simion Litsanga the Court held as follows: -
i. In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.
An error apparent on the face of the record must be:
1. Self-evident and manifest - It should be so clear that no court would permit such an error to remain on the record
2. Prima facie visible - It must not require detailed examination or elaborate argument to establish it 1
3. Not requiring long reasoning - If detecting the error requires long debate and a process of reasoning, it cannot be treated as an error apparent on the face of the record 3
I have considered the application and the replying affidavit and do find that indeed there is an error in the pleadings and the judgment of this court in the definition of the parcels of land. The court notes however, that the correct parcels of land are defined in the counter claim and the suit filed in the lower court being the Chief Magistrates Court case no 46 of 2014 between the parties herein. This lower court suit was transferred and consolidated with this case on the 4th of October 2018. The error in the pleadings and judgment is so apparent on the face of the record that it can’t be ignored. The applicant is prejudiced by this error because if allowed he will remain with a judgment on paper which cannot be enforced. I do find that there was misdescription of the property in the pleadings and the judgment. The respondent agrees with the fact that there was misdescription but states that the court cannot alter the judgment to vary with the pleadings. Article 159 is applicable to this matter in that the court should not give undue regard procedural technicalities. This court should do substantive justice to the parties herein. The application is merited and allowed.
I do grant orders that all references in the Judgment and decree be substituted with the correct parcel descriptions being:-
BAHATI/KABATINI 1/11742, BAHATI/KABATINI 1/11743, BAHATI/KABATINI 1/11744, BAHATI/KABATINI 1/11745, BAHATI/KABATINI 1/11746, BAHATI/KABATINI 1/11747, BAHATI/KABATINI 1/11748, BAHATI/KABATINI1/11749, BAHATI/KABATINI 1/11750, BAHATI/KABATINI 1/11751, BAHATI/KABATINI 1/11752, and BAHATI/KABATINI1/11753 respectively. There be no orders as to costs.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY IN NAKURU, THIS 11TH OF DECEMBER 2025.
A.O.OMBWAYO
JUDGE