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Rectification is the process whereby a document, the meaning of which has already been
ascertained is rectified so that it gives effect to the intention of the parties.
It is a remedy concerned with defects not in the making but in the recording of a
contract. It is equitable in character and therefore discretionary.
Before the court can order rectification the party seeking the same must prove certain facts,
namely:
(i) Convincing proof or evidence showing that the document fails to record the intention
of the parties. (Joscelyne V. Nissen (1970). A High degree of proof is needed so that
certainty is not undermined.
(ii) The document does not embody the intention of both parties.
(iii) The document was proceeded by a concluded contract or a continuing common
intention.
(iv) The applicant has sought rectification of the document at the earliest possible
opportunity or instance and the defendant is not a bona fide purchaser for value without
notice. This is because delay defeats equity.
maurice.mutuku answered the question on May 1, 2018 at 05:50
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