In Summary
  • While the dates may not affect the integrity of the judgment, the errors are an indictment on both the bureaucratic and judicial system which turned a blind eye on these errors.

  • The errors can be cured under Section 100 on Recall of Judgment and through Rule 35(1) (2) of the Court Rules.

  • The judgment has been tabled in Parliament and was used by the Office of the Attorney General to negotiate Francis Mburu’s Afrison Export Limited and Huelands Limited compensation for the Ruaraka land.

Questions are now being raised on errors in a landmark 2012 High Court judgment that was relied upon to award a city businessman billions of shillings in compensation for the controversial land occupied by the General Service Unit in Ruaraka — and which has been used by the National Land Commission to sanitise the payments.

On Thursday, the Judiciary said it is going to recall the judgment to rectify the errors that had gone unnoticed until they were pointed out by the Nation when it started probing the issue.

WRONG DATES

The judgment, made by Justice Alfred Mabea of the Commercial Division, not only has inconsistent dates — but has a delivery date of February 12, 2012; which was a Sunday. Kenyan courts do not normally sit on weekends and national holidays unless directed by the Chief Justice.

Apparently, even with the wrong dates, the judgment has been tabled in National Assembly and Senate committees and was used by the Office of the Attorney General to negotiate Francis Mburu’s Afrison Export Limited and Huelands Limited compensation for the Ruaraka land.

It was through this judgment that Mburu’s company was awarded Sh4.1 billion.

INDICTMENT

While the dates may not affect the integrity of the judgment, the errors are an indictment on both the bureaucratic and judicial system which turned a blind eye on these errors — among other goofs in the compensation on the Ruaraka land.

Why no one within the Judiciary and the AG’s office never noticed that the dates on Justice Mabea’s judgment were wrong even when negotiating the awards is not clear.

For instance, the Camp Valuers report is dated May 11, 2012 — which is a month after the ruling; Clayton Valuers' report is dated November 30, 2012 (nine months older) while Lloyd Masika’s report is dated January 22, 2013 — which is 11 months after Mabea’s ruling.

SECTION 100

Yesterday, the Judiciary admitted that Justice Mabea judgment ought to have a date of February 12, 2013 as captured in the case filed later by activist Okiya Omtatah when he had sought to appeal the Mabea judgment.

Mr Omtatah had also questioned why the case was determined by the Commercial Division and not the Environment and Land Court.

The errors can be cured under Section 100 on Recall of Judgment and through Rule 35(1) (2) of the Court Rules, which provides for the correction of “a clerical or arithmetical mistake in any judgment of the court or any error arising from an accidental slip or omission.”

CLERICAL ERROR

The Judiciary said yesterday that the errors can be corrected by the court either of its own motion or on the application of an interested person, but by yesterday the judgment dated February 12, 2012 was still in the Judiciary website, Kenyalaw.org.

The Court of Appeal had previously ruled that for Rule 35 to apply the mistake or error should have arisen as a result of an accidental slip or omission.

But there is something wrong, too, with the February 12, 2013 date because the Justice Mabea judgment in paragraph five quotes a “replying affidavit sworn on February 5, 2014”. Was this another clerical error?

“Yes, that is another error that should be rectified to read February 5, 2013,” a senior Judiciary official who checked the original file told us while at pains to explain why such errors occurred on such a serious matter.

SURVEY REPORTS

This affidavit is of importance since it was sworn by Victor Okioma, at the time a Secretary in the Office of the President.

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