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Court of AppealAllowedCivil Appeal No. 45 of 2010· [2013] KECA 232 (KLR)

Kebirigo Parish Consumer Co-operative Society v Diocese of Kisii Kenya, E. Africa [2013] KECA 232 (KLR)

Court of Appeal of Kenya
4 October 2013
1,845 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal overturned an auction sale of co-op land because the decree was unsigned, the buyer broke auction rules, and Land Control Board consent was missing.

What this practically means

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Executive summary

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The Diocese of Kisii sued the Kebirigo Parish Consumer Co-operative Society in 1989 for Kshs. 251,474.80 advanced to it. The defendant admitted the debt in its defence, yet the record does not show how judgment was entered; the decree produced was unsigned, undated, and drawn in unclear form, though certified by the Deputy Registrar. The plaintiff executed the decree, auctioned the defendant's land (West Mugirango/Bonyamatuta/1051), and emerged the highest bidder without leave of the court and without paying the requisite deposit. Numerous interlocutory applications by both parties followed. The appellant's application to set aside the sale and the order permitting the Executive Officer to execute transfer documents was dismissed by Wambiliyanga, J on 19 March 2001, principally because the application was filed about eight years after judgment. On first appeal, a three-judge bench of the Court of Appeal at Kisumu, the respondent not appearing, rehearsed the standard restraint on interfering with judicial discretion (Mbogo v Shah; Mwanasokoni). The court nevertheless found the judge had ignored fundamental irregularities: the defective decree, the decree-holder's unlawful participation in the auction without leave or deposit, and the absence of Land Control Board consent required by section 6 of the Land Control Act, which rendered the transaction void. It further held that the multiplicity of post-judgment applications meant the appellant had not slept on its rights. The court set aside the Ruling of 19 March 2001, allowed the appeal, and awarded the appellant costs of both the appeal and the suit. This ruling binds subordinate courts on the requirements for a valid decree and on execution irregularities.

Key legal issues

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01

Regularity of the decree

Holding

A decree must be signed and dated and must agree with the judgment; the decree relied on was unsigned and undated and therefore irregular and should not have been allowed to stand

Reasoning

The court reproduced the decree and noted it was neither signed nor dated, being only certified by the Deputy Registrar. Applying the definition of 'decree' in the Civil Procedure Act and Order 21 Rules 7 and 8 of the Civil Procedure Rules, which require a decree to bear the date on which judgment was delivered, the court held the decree failed the legal requirements and was clearly irregular.

p. 4
02

Decree-holder bidding at auction without leave

Holding

A decree-holder may not bid to purchase property in execution without the express permission of the court; the respondent participated in the auction without leave and without paying the requisite deposit

Reasoning

Order 22 Rule 61 of the Civil Procedure Rules forbids a decree-holder from bidding to purchase property in execution without express permission of the court. The court found no application by the respondent for leave to participate in the auction or an order allowing it, and noted the respondent did not pay the requisite deposit. These were matters the learned judge should have considered and which should have led to a different result.

p. 4
03

Lack of Land Control Board consent

Holding

Where consent of the Land Control Board is not obtained within six months, the transaction becomes void; the sale could not be sanctioned

Reasoning

Section 6 of the Land Control Act requires consent of the Land Control Board of the relevant area to be obtained within six months, failing which the transaction becomes void. Consent was not obtained by the respondent at all, so the sale could not be sanctioned. The court cited Situma v Cherongo on the effect of failure to apply for consent within the statutory period.

p. 4
04

Laches in light of continuing litigation

Holding

A party is not guilty of laches where multiple applications by both parties kept the court busy after judgment; delay of itself did not justify dismissal of the application

Reasoning

The learned judge based his findings purely on the appellant's delay of about 8 years after judgment. The court found that the parties had filed many applications since entry of judgment seeking various orders, so it could not be said the appellant had slept on its rights. The judge ignored fundamental issues and irregularities, and this led to injustice, warranting appellate correction.

p. 4

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a judge unless the judge misdirected himself in some matter and reached a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong and injustice resulted
  • An appeal based on fundamental irregularities in the execution process, once established, entitles the appellate court to correct the wrongs notwithstanding delay where the parties were actively litigating throughout

Court orders

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  1. 1.The Ruling delivered on 19th March 2001 is set aside
  2. 2.The appeal is allowed
  3. 3.The appellant is awarded costs of the appeal and costs of the suit

Authorities

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Legislation

  • Civil Procedure ActDefinition of 'decree'
  • Civil Procedure RulesOrder 21 Rules 7 and 8
  • Civil Procedure RulesOrder 22 Rule 61
  • Land Control ActSection 6
  • Land Control ActSection 8

Cases cited (4)

  • Mbogo & Another v Shah
    [1968] EA 93
  • Mwanasokoni v Kenya Bus Service Limited
    (Mombasa) (Civil Appeal No. 35 of 1985)
  • Situma v Cherongo
    [2007] 2 KLR 84
  • William Ocharo Maangi v Joseph Onyoni Kombo
    (Kisumu) Civil Appeal No. 18 of 1995
On appeal from
High Court of Kenya at Kisii
HCCC No. 325 of 1989
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Procedure provisions); the judgment identifies the matter as 'a first appeal'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kebirigo Parish Consumer Co-operative Society v Diocese of Kisii Kenya, E. Africa [2013] KECA 232 (KLR)", Case Analysis (2013). Civil Appeal No. 45 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/232/eng@2013-10-04

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