Bruce Joseph Bockle v Coquero Limited [2017] KECA 265 (KLR)

The court adopted the classic formulation in United India Insurance Co. Ltd vs. East African Underwriters, which confines appellate interference with discretionary decisions to cases of legal misdirection, misapprehension of facts, consideration of irrelevant matters, failure to consider relevant matters, or a decision that is plainly wrong. None of these grounds was established against the ruling of Omollo, J.

The court agreed with Kuloba, J.'s reasoning in Mercedes Sanchez Rau Tussel that if appeals or reviews automatically stayed execution, any judgment-debtor could jam the justice process and postpone pay-day simply by lodging an appeal or review. Indeed, the pendency of such proceedings supports execution before taxation, since preparing a bill of costs while challenges are ongoing is impractical and may result in piecemeal taxation.

The court examined the orders issued in the judgment of 14th March 2013, particularly the mandatory injunction requiring the appellant to remove his property and vacate the land. It held that such orders required the appellant to give vacant possession to the respondent, and the only lawful means of enforcing that relief against a party refusing to vacate was eviction as provided under Order 22 Rule 29. The learned Judge therefore correctly issued the eviction order.

The court acknowledged the general principle that police ought not to be used in civil execution. However, on the facts, the respondent demonstrated that the appellant had refused to comply with court orders, had hindered erection of a perimeter wall, and had brought squatters into the suit property. In those circumstances, directing the police to maintain law and order during the eviction was proper, consistent with Section 24 of the National Police Service Act.

Both courts below had found that the respondent was an innocent purchaser for value without notice and that no irregularity or fraud was demonstrated in the title. For the executing court or this Court to entertain those issues afresh would amount to sitting on appeal over decisions over which neither had jurisdiction. The respondent also argued, relying on Openda vs. Ahn, that the issues were new ones raised for the first time at this stage and should not be entertained.

Section 94 of the Civil Procedure Act empowers a court to allow execution before costs are ascertained by taxation in circumstances it considers just. The learned Judge found that both the trial court and the Court of Appeal had conclusively determined the respondent's indefeasible title, leaving no reason to deny execution of the decree dated 25th September 2013. The Court found this exercise of discretion unimpeachable.