The matter was heard on 30 March 2021, with Ms L Makumbe appearing for the applicant and Adv D Ochieng representing the 1st respondent. After hearing argument, the court gave an ex tempore judgment dismissing the application and ordering the applicant and 2nd respondent to pay the 1st respondent's costs on an attorney and client scale, jointly and severally. However, when the order was typed and given to the parties, it omitted the phrase "on an attorney and client scale" from the costs order. The 1st respondent's attorneys brought this discrepancy to the court's attention through letters dated 9 September 2021 and 29 October 2021.
The order was corrected to read: "IT IS ORDERED THAT: 1. The application is dismissed. 2. The costs shall be paid by the applicant and 2nd respondents on an attorney and client scale, jointly and severally, the one paying the other to be absolved."
The court has power under Rule 29(1)(b) of the High Court Rules (S.I. 202 of 2021) to correct an order or judgment, on its own initiative or upon application by an affected party, where there is an ambiguity, error or omission. Where a typed order omits material terms that were included in the order pronounced in open court, this constitutes an error or omission that must be corrected to ensure the typed order reflects what the court actually ordered.
The judgment does not contain significant obiter dicta. The court's reasoning was confined to the narrow procedural issue of correcting the clerical error in the typed order. The court noted that it had believed all along that the correct order had been typed and given to the parties, indicating that the error was purely administrative rather than substantive.
This case demonstrates the court's inherent power and statutory authority under Rule 29(1)(b) of the High Court Rules to correct clerical errors, omissions or ambiguities in typed orders that do not accurately reflect the order pronounced in open court. It emphasizes the principle that the order pronounced in open court takes precedence over any subsequent typed version that contains errors or omissions. The case is instructive on procedural safeguards ensuring that parties receive the relief or orders actually granted by the court.