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Court of AppealPartially AllowedCivil Appeal No. 230 of 2001· [2004] KECA 46 (KLR)

Malakwen Arap Maswai v Paul Kosgei [2004] KECA 46 (KLR)

Court of Appeal
26 November 2004
2,363 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that even court judgments expire: you have twelve years to enforce one, including eviction orders, or your claim is dead.

What this practically means

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Executive summary

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The dispute concerned Land Reference No. Nandi/Itigo/260, registered in 1973 in the name of Kiplagat Arap Chepkwony. The appellant alleged that he bought the land for Kshs 21,450, paid in full and took possession, and sued for specific performance in 1977. Chepkwony admitted the contract but pleaded that, no land control board consent having been obtained, it was void under the Land Control Act. On 23rd October, 1979 a consent order was recorded requiring the appellant to vacate by 31st December, 1979. His application for review was dismissed by Mead, J on 27th June, 1980, on the footing that his advocate had ostensible authority to settle; no appeal was preferred and the consent order remained undisturbed. The appellant nonetheless later had the land registered in his name following proceedings before the District Commissioner and elders. Chepkwony moved on 20th June, 1995 for the appellant's eviction, and Nambuye, J on 6th February, 2001 allowed the application with costs, police-supervised eviction and liberty to reverse the title. Allowing the appeal, the Court of Appeal held that an application to enforce a judgment is an 'action' within section 4(4) of the Limitation of Actions Act, following Njuguna v Njau and the English decisions in Lamb & Sons Ltd v Rider and Lougher v Donovan. Time ran at the latest from the refusal of review on 27th June, 1980, so the twelve-year period lapsed on 26th June, 1992 and the 1995 motion was statute-barred; the explanation of powerful personalities behind the appellant was no answer to a point of law. The High Court orders were set aside and the motion dismissed, with each party bearing its own costs in both courts because the successful appellant had resorted to extra-judicial methods.

Key legal issues

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01

Whether an application to enforce a judgment, including execution or eviction proceedings, constitutes an 'action' under section 4(4) of the Limitation of Actions Act (Cap 22).

Holding

Yes. 'Action' bears a wide meaning embracing all kinds of civil proceedings, including execution and eviction proceedings, so a motion to enforce a judgment cannot be brought more than twelve years after the judgment.

Reasoning

The court considered the definition of 'action' in section 3 of the Interpretation and General Provisions Act (any civil proceedings in a court, including any suit as defined in section 2 of the Civil Procedure Act) and concluded the term is wider than 'suit' and captures the respondent's notice of motion for eviction. It relied on the English authorities of Lamb & Sons Ltd v Rider and Lougher v Donovan and on the domestic precedent Njuguna v Njau, in which this Court had held that 'action' in section 4(4) embraces execution proceedings.

p. 4
02

Whether the respondent's notice of motion dated 20th June, 1995 to enforce the 1979 consent order was statute-barred.

Holding

Yes. Time ran at the latest from the refusal of the review on 27th June, 1980; the twelve-year period expired on 26th June, 1992, so the motion filed on 20th June, 1995 was out of time and could not sustain the eviction orders.

Reasoning

The consent order had never been set aside - no appeal was preferred from Mead, J's dismissal of the review - so it remained in force and enforceable only within twelve years. The learned judge made no finding on limitation, concentrating instead on the appellant's efforts to avoid the judgment. Counsel's explanation that the respondent faced powerful personalities aligned behind the appellant was held to be no answer to a pure issue of law.

p. 4
03

Whether the High Court erred in granting eviction and ancillary orders not prayed for, and in ordering eviction of the registered proprietor (grounds 2 and 3).

Holding

The court found substance in the complaints but did not determine them in detail, the appeal having succeeded on limitation.

Reasoning

The judge granted liberty to initiate process to reverse the title, which had not been sought in the motion, and ordered eviction against a party who had become the registered proprietor. The court expressly declined to go into these matters in great detail given its conclusion on the limitation grounds; that conclusion alone disposed of the appeal, so these observations are not ratio.

p. 4
04

Whether the successful appellant was entitled to costs of the appeal and of the court below.

Holding

No. Each party was ordered to bear its own costs in both courts.

Reasoning

Although the appeal succeeded, the court exercised its discretion against the appellant because, after losing in the High Court, he was prepared to use, and did use, extra-judicial methods - including the proceedings before the District Commissioner and elders that led to the land being registered in his name - to get his way. Conduct disentitling a successful party to costs is a discretionary, fact-specific ruling rather than the ratio of the appeal.

p. 5

Legal principles established

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  • An application to enforce a judgment, including execution or eviction proceedings, is an 'action' within section 4(4) of the Limitation of Actions Act and is statute-barred if not brought within twelve years of the judgment.
  • 'Action' in section 4(4) of Cap 22 bears a wide, unrestricted meaning and embraces all kinds of civil proceedings, including execution proceedings.
  • A consent order from which no appeal is brought remains in force and binding.
  • A litigant who is otherwise successful may be denied costs where he resorted to extra-judicial methods after losing in the High Court.

Court orders

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  1. 1.The appeal is allowed.
  2. 2.The orders made by Nambuye, J on 6th February, 2001 are set aside.
  3. 3.In substitution, the respondent's notice of motion dated 20th June, 1995 is dismissed.
  4. 4.Each party shall bear its own costs both in the High Court and in this Court.

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 4(4)
  • Land Control Act (Chapter 302, Laws of Kenya)Not specified (contract void for want of land control board consent)
  • Interpretation and General Provisions Act (Chapter 2, Laws of Kenya)Section 3
  • Civil Procedure ActSections 2 and 3A
  • Civil Procedure RulesOrder 44 rule 1; Order 50 rule 1

Cases cited (3)

  • LAMB & SONS LTD. V. RIDER
    [1948] 2 ALL E.R. 402
  • LOUGHER V. DONOVAN
    [1948] 2 ALL E.R. 11
  • NJUGUNA V. NJAU
    [1981] KLR 225
On appeal from
High Court of Kenya at Eldoret
H.C.C. Suit No. 238 of 1977
Jurisdiction invoked
Not expressly invoked in the judgment; the appeal lay from the ruling and order of the High Court of Kenya at Eldoret (Nambuye, J) in H.C.C. Suit No. 238 of 1977 under the Court of Appeal's appellate jurisdiction over High Court decisions.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Malakwen Arap Maswai v Paul Kosgei [2004] KECA 46 (KLR)", Case Analysis (2004). Civil Appeal No. 230 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/46/eng@2004-11-26

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