1.Before this Court for determination is the Appellants’ Notice of Motion application dated 2nd August, 2021 brought pursuant to the provisions of Section 99 of the Civil Procedure Act and Order 21 Rule3 (3) of the Civil Procedure Rules seeking the following reliefs;
2.The application is based on the grounds on the face of the Motion and supported by the Affidavit of Abdulsalam Shariff, the Managing Director of the Appellant, who deponed that vide its decision of 23rd December, 2013, the Respondent awarded the Appellant the sum of Kshs 87,804,225/= as compensation for the compulsory acquisition of the parcel of land known as L.R 209/9727(IR 37790) in Nairobi measuring 0.4282 of a Hectare(hereinafter the suit property).
3.According to the Appellant, aggrieved by the Award, it filed an Appeal before this court seeking enhancement of the award; that before the determination of the Appeal, Kenya National Highways Authority on whose behalf the Respondent acquired the land, took possession of the aforestated portion for purposes of construction of the Nairobi Southern by-pass and that by a Judgment delivered on 24th November, 2014, this Court set aside the Respondent’s award of Kshs 87,804,225/= and awarded the Appellant a sum of Kshs 413, 195,500.
4.According to the Appellant, Section 117(1) of the Land Act, 2012 provides that the National Land Commission shall pay interest on the amount awarded from the time of taking possession till the date of payment; that at the time of the delivery of the Judgment, the Respondent had already taken possession of the land hence the award of interest pursuant to the terms of Section 117(1) of the Land Act, 2012 will result in a denial of interest rightfully accrued to the Appellant.
5.It was deponed that as the intention of the Judge was to award interest on the compensation award, Order No 4 in the Judgment dated 24th November, 2014 ought to be corrected so as to give effect to the intention of the Judge and that a correction of the error is desirable so as to enable parties know the decretal sum due and owing.
6.The application was not opposed.
7.The Appellant filed written submission on 10th November, 2021 in which Counsel submitted that the present Motion is brought pursuant to the provisions of Section 99 of the Civil Procedure Act which gives the court jurisdiction to correct clerical and arithmetic errors.
8.Reliance was placed on the case of Republic vs Attorney General & 15 others Ex-parte Kenya Seed Company Limited & 5 Others  eKLR where the Court of Appeal discussed the doctrine of the “slip rule” as codified by Section 99 of the Civil Procedure Rules.
9.It was submitted that Section 117 (1) of the Land Act provides that the Respondent shall pay interest on the amount awarded from the time of taking possession until payment in full and that as a result of the fact that possession had taken place prior to the decision of the court, it follows that the phrase “from the date of judgement until date of possession” will have the effect of denying the Appellant interest.
10.According to the Appellant, as expressed by the Court in Royal Media Services & Another vs Jakoyo MidiwoeKLR, where damages have been assessed by the Court, the rights thereto do not arise until they are assessed and therefore interest is only given from the date of Judgment; that the delay in filing the present application was occasioned by the long grace period granted to the Respondent to pay the decretal sum and that it was only in July, 2021 when the Appellant decided to commence execution proceedings that it discovered the error.
Analysis & determination
11.Having considered the application, the sole issue for determination is whether Judgement can be amended under the “slip rule.” The present application is premised on Section 99 of the Civil Procedure Act which allows amendment of judgments, decrees or orders.
13.Order 23 Rule 3(3) of the Civil Procedure Rules provides as follows:
14.The Court of Appeal in the case Leonard Mambo Kuria vs Ann Wanjiru Mambo (2017) eKLR extensively discussed the import of Section 99 and 100 of the Civil Procedure Act as follows:
15.What is apparent from the foregoing is that the application of Section 99 otherwise known as the “slip rule” applies to give 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.
16.In the present case, the Appellant asserts that order 4 of the Judgment dated 24th November, 2014 constitutes an error liable to be corrected pursuant to the provisions of Section 99 of the Civil Procedure Rules.
17.The aforesaid Order was to the effect that the said compensation award of Kshs 413,192,500/= shall be paid to the Appellant by the Respondent with interests at court rates from the date of this judgment until date of possession by the Respondent of the portion of land parcel known as L.R 209/9727(I.R 37790) in Nairobi measuring 0.4281 of a hectare.
18.The law with respect to compensation on compulsorily acquired land is found in Section 117 of the Land Act, 2012 which provides that as follows:
19.In the present case, the Appellant being dissatisfied with the award by the Respondent filed an appeal thereto. The Appeal was successful and the award enhanced. Under the impugned Order 4, the Court granted the Appellant interest on the enhanced sum from the date of judgment till the date of possession.
20.Having considered the Judgment and the Appellant’s submissions, it is apparent that at the time of the determination of the suit, the Court was unaware that possession of the suit property had already taken place. This position can be seen from the opening paragraph of the Judgment where the court stated as follows: The Appellant has appealed against the decision of the Respondent on compensation payable for a portion of the said land which it intends to compulsorily acquire measuring 0.4281 of a hectare.
21.The Court having enhanced the compensation, its award on interest was predicated on Section 117 of the Land Act, 2012. The land having already been taken, the prevailing situation meant that the Orders of the Court were incapable of enforcement.
22.As stated by the Court of Appeal in Leonard Mambo Kuria v Ann Wanjiru Mambo ( supra)A court will, of course, only apply the slip rule 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.”
23.The court is convinced that the import of Order 4 in the Judgment of 24th November, 2014 was to give interest on the enhanced compensation award, in accordance with section 117 of the Act. This intention can only be actuated by the amendment sought by the Appellant.
24.For those reasons, the application dated 2nd August, 2021 is allowed as prayed but with no order as to costs.