Batholomew Muyale v Shem Nyambasi Mulefu & another [1985] KECA 62 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an eviction because the court papers described the wrong piece of land - execution can only target property named in the judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant was entitled to a stay of execution of the eviction order of April 15, 1985
- 2.Whether an eviction order founded on a suit and consent order describing a different parcel of land (952 instead of 852) could stand
- 3.Whether the court could invoke its inherent jurisdiction over an irregularity not raised as a ground of appeal
Key legal issues
#Whether misdescription of the suit property in the plaint and consent order was fatal to the eviction order
Yes. The suit, consent order and eviction order related to parcel South Kabras/Bukusu/952, while the respondents were registered proprietors of parcel 852. Execution on parcel 852 was a clear irregularity and the eviction order had to be set aside.
The court held that pleadings exist to define and delimit the matters in controversy and to prevent execution on the wrong property. The misdescription originated in the plaint and no correction under section 99 of the Civil Procedure Act was ever sought. Because judgment was obtained and a decree issued only in respect of parcel 952, execution against parcel 852 was irregular, not a mere technical error or misnomer, and could not stand.
Whether a stay of execution could be granted on the basis of a suit filed against the Bank (Kisumu Civil Suit No 115 of 1984)
No. The respondents were not parties to that suit, so a stay on that basis could not be granted against them.
The applicant's new suit challenging the Bank's sale did not name the respondents, who purchased at the auction. Any judgment in that suit would not bind the respondents. A stay of execution premised on the outcome of that suit could only be sought in that suit itself with the respondents joined as parties. The court therefore declined to grant the stay on that basis.
Whether the court could act on the irregularity although it was not raised as a ground of appeal
Yes; the court invoked its inherent jurisdiction to prevent execution on the wrong property.
Following Magon v Ottoman Bank, where a judgment is obtained irregularly and contrary to the Civil Procedure Rules, the party is entitled as of right to have it set aside without conditions, and the court may act under its inherent jurisdiction where specific procedural provisions do not apply. The court accordingly exercised that jurisdiction suo motu in favour of the applicant despite the numerous prior failed applications.
Legal principles established
#- The subject matter of a suit must be clearly and correctly described in the pleadings, and execution can only be levied on the property described in the suit and judgment.
- A party cannot execute or obtain possession of property other than that on which judgment was obtained; doing so is an irregularity.
- The court may invoke its inherent jurisdiction to prevent acts flowing from an irregularity even where the irregularity was not raised as a ground of appeal.
- As a general rule, relief not founded on the pleadings will not be given.
Court orders
#- 1.The application is allowed with costs
- 2.The eviction order dated April 15, 1985 granted by Aganyanya J is set aside
- 3.The respondents are left to pursue their remedies according to law
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment allowing the stay application: the suit and consent order concerned parcel South Kabras/Bukusu/952, not parcel 852 where the applicant resided and which the respondents owned; execution on the wrong property was a clear irregularity which the court's inherent jurisdiction should prevent.
The principles of pleading is that the subject matter of any suit must be clearly and correctly described so as to avoid any execution on wrong property.p. 2
Agreed entirely with Gachuhi Ag JA: the original plaint misdescribed the land, the consent order was in respect of the wrong piece of land, and the error was fundamental, not merely technical.
I therefore agree entirely with the judgment of Gachuhi Ag JA, which I have had the advantage of reading in draft. This was a fundamental, and not merely a technical errorp. 3
Agreed with the leading judgment, stressing that relief not founded on the pleadings will not be given and that the misdescription of land was fundamental.
As a general rule, relief not founded on the pleadings will not be givenp. 3
- On appeal from
- High Court of Kenya at Kakamega
- Civil Suit No 13 of 1979
- Jurisdiction invoked
- Inherent jurisdiction of the court; application for stay of execution from the High Court (Civil Procedure Act, section 99 and Civil Procedure Rules referenced in proceedings)
Relief refused
#Stay of execution on the basis of the pending Kisumu Civil Suit No 115 of 1984 against Kenya Commercial Bank Ltd
The respondents are not parties to that suit, so any order made in it cannot affect them; a stay on that basis could only be sought in that suit with the respondents as parties.
Costs
Application allowed with costs to the applicant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The principles of pleading is that the subject matter of any suit must be clearly and correctly described so as to avoid any execution on wrong property.
It is only on that property that they can levy execution either for trespass or possession, but cannot execute or obtain possession on parcel No South Kabras/Bushu/852. This is a clear irregularity.
Although this was not a ground of appeal before this court, nevertheless this court has a duty to invoke its inherent jurisdiction in the matter and prevent any act that may be caused by such irregularity.
On the basis of this decision, to prevent execution on the wrong property for which judgment was obtained, I would allow the application with costs, and set aside the eviction order dated April 15, 1985.
Issues in the judgment
#The judgment inconsistently renders the parcel numbers, sometimes as 'Kabras/Bushu' and sometimes as 'Kabras/Bukusu', and the plaint error itself shifts between 952 and 852 in the description of the suit property.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Batholomew Muyale v Shem Nyambasi Mulefu & another [1985] KECA 62 (KLR)", Case Analysis (1985). Civil Application No NAI 33 of 1980 (KMU 10/80) - application for stay of execution. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/62/eng@1985-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.