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Court of AppealDismissedCivil Appeal No. 336 of 2010· [2018] KECA 881 (KLR)

Cyrus Komo v Hannah Nyambura Gikamu

Court of Appeal
19 January 2018
ASAsike-MakhandiaSKS. Gatembu KairuKMK. M'inoti
2,189 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that when a court order is reversed, anyone who benefited must restore what the other side lost, including undoing land subdivisions.

What this practically means

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Executive summary

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This was a second-tier appeal to the Court of Appeal at Nairobi against a High Court judgment (Muchelule, J, 6th July 2010) which had allowed the respondent's first appeal and set aside a magistrate's ruling of 30th November 1990 refusing her application for restitution under Section 91 of the Civil Procedure Act. The underlying dispute concerned land title Githunguri/Gathangari/1218, over which the respondent had lodged a caution. The magistrate's ex parte order of 23rd December 1988 struck out her defence and removed the caution; the property was then subdivided. That order was reversed on 17th February 1989, reinstating the caution, and the respondent sought restitution to cancel the subdivisions and restore the property and caution. The magistrate declined; the High Court allowed her appeal and ordered cancellation of the subdivisions and restoration of the property and caution. The Court of Appeal, in a unanimous judgment, affirmed. It held that Section 91 imposes an obligation on the party who benefited from a reversed decree to make restitution, restoring the status quo ante, and that the High Court's orders merely preserved the subject matter pending trial. The appellant's arguments on the respondent's decree in RMCC 21 of 1988 and on Section 143 of the Registered Land Act were left to the trial court, the Court exercising restraint since the substantive suit remains pending. The appeal was dismissed with costs to the respondent, and the Court directed that RMCC 88 of 1988 be mentioned within 14 days for fixing hearing dates, lamenting the 30-year delay.

Key legal issues

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01

Scope of restitution under Section 91 of the Civil Procedure Act

Holding

The respondent lost protection over the suit property under the order of 23rd December 1988; its reversal on 17th February 1989 entitled her to restitution restoring the status quo ante, including cancellation of subdivisions made in the interim.

Reasoning

Section 91(1) restores to a party what was lost in consequence of a decree later varied or reversed. The order of 23rd December 1988 removed the caution; the 17th February 1989 order reversed it and reinstated the caution. The subdivisions were effected on the strength of the reversed order, so restitution properly undid them and restored the caution pending trial.

p. 3
02

Effect of the respondent's alleged decree in RMCC 21 of 1988 over subdivision 1720

Holding

Whether the respondent's interest had crystallised in subdivision 1721 and how the RMCC 21 of 1988 decree affects the suit is a matter for the trial court, not the appeal.

Reasoning

The appellant argued the respondent's interest had shifted to subdivision 1721 under a decree in a different suit. The Court accepted this may be so but held the impugned High Court orders merely preserved the subject matter pending trial; the interaction of the two suits is for the magistrate's court at the full hearing.

p. 4
03

Section 143 of the Registered Land Act and rights of a purchaser for value

Holding

The Court did not determine the Section 143 argument, treating the appellant's points on third-party interests and the Registered Land Act as matters for the trial court.

Reasoning

The appellant complained the Judge failed to distinguish Section 91 of the Civil Procedure Act from Section 143 of the Registered Land Act protecting proprietors in possession. The Court declined to pronounce on this, exercising restraint because the substantive suit remains pending before the magistrate's court.

p. 4

Legal principles established

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  • Section 91 of the Civil Procedure Act obliges a party who received the benefit of a reversed decree to make restitution placing the other party in the position they would have occupied but for the decree.
  • Where a reversed order is followed by acts done in reliance on it, restitution under Section 91 extends to undoing those acts and restoring the status quo ante.
  • An appellate court should exercise restraint where the substantive dispute remains pending before the trial court, so as not to embarrass it at trial.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.RMCC 88 of 1988 to be mentioned before the Magistrate's Court within 14 days of delivery of the judgment for fixing hearing dates with a view to expeditious disposal

Authorities

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Legislation

  • Civil Procedure ActSection 91(1)
  • Registered Land ActSection 143
On appeal from
High Court of Kenya at Nairobi
Nairobi H.C.C.A. No. 75 of 1991
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Constitution of Kenya, 2010, Article 164; Civil Procedure Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Cyrus Komo v Hannah Nyambura Gikamu", Case Analysis (2018). Civil Appeal No. 336 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/881/eng@2018-01-19

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