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Court of AppealStruck OutCivil Appeal 178 of 1995· [1995] KECA 78 (KLR)

Elekia Ochieng Ouma & another v Samuel Odhiambo [1995] KECA 78 (KLR)

Court of Appeal of Kenya
23 November 1995
AAA. M. AkiwumiPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
441 words in judgment
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The bottom line

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The Court of Appeal confirmed that once a judgment is entered in terms of a surveyor's award, it cannot be appealed unless the decree exceeds or departs from the award.

What this practically means

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Executive summary

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The respondent sued the appellants in H.C.C.C. No. 22 of 1995 (High Court, Kisii, Mbaluto J) alleging that they had annexed a portion of his land and had it registered as part of their parcels SUNA EAST/WASWETA/9532 and 9533. He sought a declaration that the appellants held 4.5 acres of those parcels in trust for him, plus an injunction. By consent, the parties on 12th April 1995 referred the dispute to the District Surveyor, Migori, to establish the boundary before sub-division of the head title. The award was filed and read out to the parties; none sought to set it aside, and on 14th July 1995 the judge entered judgment in terms of the award, extracting portions from the appellants' parcels into the respondent's title. The appellants appealed on four grounds attacking the entry of judgment in terms of the award. The Court of Appeal (Akiwumi, Tunoi and Lakha JJA) held the appeal misconceived: under Order 45 rule 17(2) of the Civil Procedure Rules no appeal lies against a decree entered according to an award except where the decree exceeds or is not in accordance with the award. The appeal was struck out with costs to the respondent. The decision binds subordinate courts and the High Court on the finality of awards reduced to judgment under Order 45.

Key legal issues

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01

Whether an appeal lies against judgment entered in terms of an award under Order 45 rule 17(2) of the Civil Procedure Rules

Holding

No appeal lies under Order 45 rule 17(2) against a decree entered in terms of an award, save where the decree exceeds or departs from the award; the appeal was accordingly misconceived.

Reasoning

The parties by consent referred the boundary dispute to the District Surveyor, Migori, whose award was filed and read to the parties. Neither party took steps to set the award aside, and the learned judge entered judgment in terms of the award in the presence of both parties. Under Order 45 rule 17(2), a decree entered according to the award is not appealable except in so far as it is in excess of, or not in accordance with, the award. The appellants challenged the entering of judgment in terms of the award without establishing any such excess or departure, so the appeal did not lie and was struck out.

p. 1

Legal principles established

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  • No appeal lies under Order 45 rule 17(2) of the Civil Procedure Rules against a decree entered in terms of an award, except where the decree is in excess of, or not in accordance with, the award.

Court orders

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  1. 1.The appeal is struck out with costs to the respondent
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 22 of 1995
Jurisdiction invoked
Appeal from the High Court under the Civil Procedure Rules; the court held no appeal lay under Order 45 rule 17(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elekia Ochieng Ouma & another v Samuel Odhiambo [1995] KECA 78 (KLR)", Case Analysis (1995). Civil Appeal 178 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/78/eng@1995-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.