Daniel Migwi Njai v High View Farm Limited & another [2015] KECA 368 (KLR)

The Court examined Section 34(1) of the Civil Procedure Act which vests in the court executing a decree all questions between the parties relating to execution, discharge or satisfaction of the decree. The judge wrongly treated the whole application as an attempt to reopen the Court of Appeal's decision. He correctly had no jurisdiction over cancellation of the respondents' title because the decree for specific performance had been upheld on appeal, and the doctrine of precedence and stare decisis bound him. But the question whether the decree was validly executed fell squarely within Section 34(1) and should have been determined on the merits.

The Court endorsed Rafiki Enterprises Limited v Kingsway Tyres & Automart Limited that the Court of Appeal has no jurisdiction to recall, nullify, vary or rescind its own decision. The decree for specific performance had been heard and determined in Civil Appeal No. 139 of 1989 between the same parties. The judge was therefore bound by that decision on the question of cancellation of title, and this Court likewise could not disturb the decree.

The decree required the respondents to tender the balance of the purchase price upon transfer. The balance was paid only on 30th October 2008, over two years after transfer on 10th April 2006. The explanation of the 2nd respondent's stroke was no excuse given the respondents' possession since 1985. Interest was not payable from 1985 because during that period the appellant himself declined to perform the contract and execute the instruments of transfer, and the balance was not due and payable until the property was transferred.