Esther Angong’a Ngicho v Isdora Opiyo Yogo
The bottom line
#Kenya's Court of Appeal dismissed a six-year-late attempt to kill an appeal and confirmed a land dispute settled in 1964 cannot be reopened.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of an application to strike out a notice and record of appeal
The proviso to Rule 84 bars any application to strike out brought more than 30 days after service of the notice of appeal or record of appeal; the respondent's application, filed six years after service, was out of time and without merit
Rule 84 permits a person affected by an appeal to apply to strike out the notice or the appeal at any time, but the proviso imposes an outer limit of 30 days from service. The notice of appeal was served on 9th August 2011 and the application was filed on 21st September 2017, a period of six years. No application for extension of time to file the striking-out application had been made. The Motion therefore fell squarely outside the proviso and was dismissed with costs.
Application of res judicata to the dispute over Land Parcel Nos. Kagan/Komenya/457 and 458
The dispute between the parties over the suit properties was directly and substantially determined by the District Magistrate's Court in Case No. 71 of 1964 between the same parties or their representatives, and no appeal was filed against that decision; the 2002 Originating Summons was res judicata and an attempt to reopen a concluded matter
Section 7 of the Civil Procedure Act bars any court from trying a suit or issue previously heard and finally decided by a competent court between the same parties litigating under the same title. The same properties, parties and boundary issue were determined in 1964; the review was declined and the boundary demarcation confirmed. No appeal was lodged against the 1964 decision. The judge correctly found the Originating Summons an attempt to reopen a matter long concluded.
Whether the High Court judge could give directions implementing the 1964 decision
Having correctly found the dispute concluded by the 1964 decision, the judge erred in proceeding to give further directions and to order rectification of the registers; a judgment is executed by the court that issued the decree, and the High Court did not deliver the 1964 judgment
Once the court found the matter res judicata, its jurisdiction was exhausted; the remaining orders directing the lands office to rectify the registers were made without jurisdiction and on matters beyond what was properly open. Further, execution and implementation of a decree belong to the court that issued it. The directions were therefore erroneous in law and the judgment as a whole fell to be set aside.
Costs of the suit in the High Court
The judge erred in awarding costs to the respondent, who was the losing party; the appellant, having successfully defended the adverse possession claim, was entitled to the costs of the suit
Costs follow the event. The respondent's claim for adverse possession was rejected and the dispute was held res judicata, so the appellant was the successful party. Even if the respondent had been partially successful on some prayers, at most each party would have borne its own costs. Since the judge's directions beyond the 1964 finding were erroneous, there was no basis for awarding costs to the respondent.
Legal principles established
#- An application to strike out a notice of appeal or record of appeal must be brought within 30 days of service of the notice of appeal or record of appeal, and no extension was sought here; an application filed outside that period is statute-barred under the Rules
- Where a dispute has been finally determined by a competent court and no appeal lies against that determination, a court seized of a later suit founded on the same matter is barred by res judicata and may not give further directions or orders relating to the subject matter
- A judgment can only be executed and implemented by the court that issued the decree; a superior court cannot direct the implementation of a lower court's judgment
- In the absence of a notice of appeal against a decision, an appellate court lacks jurisdiction to grant any relief against that decision, and failure to launch a notice of appeal amounts to a waiver of the right to challenge it
- Costs follow the event; a losing party is not entitled to costs, and at most a partially successful party is entitled to an order that each party bear their own costs
Court orders
#- 1.The Notice of Motion dated 21st September 2017 seeking to strike out the notice and record of appeal is dismissed with costs to the appellant
- 2.The judgment of the High Court delivered on 14th July 2011 is set aside
- 3.Costs before the High Court to be paid by the respondent
- 4.The appeal is allowed with costs
- On appeal from
- High Court of Kenya at Kisumu
- ELC No. 900 of 2015 (formerly Kisumu HCCC No. 236 of 2002)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court decisions (the judgment does not cite a specific constitutional provision for its own jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Angong’a Ngicho v Isdora Opiyo Yogo", Case Analysis (2019). Civil Appeal No. 94 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/421/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.