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Court of AppealPartially AllowedCivil Appeal No. 94 of 2017· [2020] KECA 573 (KLR)

Esther Angong’a Ngicho v Isdora Opiyo Yogo.respondent

Court of Appeal of Kenya
19 June 2020
4,281 words in judgment
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The bottom line

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Kenya's Court of Appeal killed a six-years-late attempt to strike out an appeal and confirmed that once a land dispute is finally decided, only the original court can enforce its judgment.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the High Court at Kisumu (Aroni J) of 14th July 2011 in a long-running land dispute between the parties over Land Parcels Kagan/Komenya/457 and 458, a dispute litigated since 1964 and finally determined by the District Magistrate's Court in Appeal No. 71 of 1964, against which no appeal was ever filed. Before the Court of Appeal, the respondent moved to strike out the notice and record of appeal and the certificate of delay, alleging fraud and inordinate delay. Makhandia JA dismissed that application because the proviso to Rule 84 of the Court of Appeal Rules bars strike-out applications filed more than 30 days after service of the notice of appeal; the application came six years late. On the substantive appeal, the court agreed with the trial judge that the respondent's adverse possession claim was barred by res judicata, the 1964 decision having conclusively settled the boundary between the parties. However, the court held that having made that finding, the judge exceeded her jurisdiction by giving directions for rectification of the registers in implementation of the 1964 decree: execution of a decree belongs to the court that issued it. The court further held that costs follow the event, and that the appellant, as the successful party, should not have been condemned to pay costs. The judgment was delivered under rule 32(3) of the Court of Appeal Rules following the death of Odek JA before delivery; Kiage JA concurred fully with Makhandia JA's judgment. The application to strike out was dismissed with costs; the appeal was allowed with costs and the High Court judgment and costs order set aside.

Key legal issues

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01

Time-bar under the proviso to Rule 84 of the Court of Appeal Rules

Holding

The strike-out application was statute-barred and had to be dismissed.

Reasoning

The notice of appeal was served on 9th August 2011; the 30-day period in the proviso to Rule 84 expired on 9th October 2011. The application was filed on 21st September 2017, six years later, with no extension of time sought. The mandatory proviso therefore barred the application irrespective of the merits of the alleged defects in the appeal.

p. 2
02

Res judicata and the limits of the trial court's jurisdiction after dismissing an adverse possession claim

Holding

The dispute had been conclusively determined by the District Magistrate's Court in Case No. 71 of 1964; the trial judge correctly applied res judicata but erred in giving further directions for implementation of the 1964 decision.

Reasoning

The suit properties, the parties and the issue in the Originating Summons were the same as in the 1964 litigation, the parties being representatives in interest of the original litigants. Once the judge rejected adverse possession and found the matter res judicata, she exceeded her jurisdiction by purporting to direct rectification of registers in implementation of a decree issued by another court; execution of a decree belongs to the court that issued it.

p. 5
03

Award of costs to the losing party

Holding

Costs follow the event; the appellant, having successfully defended the adverse possession claim, was entitled to costs in the High Court, and at most the respondent could have obtained an order that each party bear her own costs.

Reasoning

The trial judge condemned the successful party to pay costs without assigning reasons. Because the judge's directions beyond the res judicata finding were erroneous, the costs order could not stand. The appeal court set aside the costs award and ordered the respondent to pay the High Court costs.

p. 5

Legal principles established

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  • An application to strike out a notice or record of appeal must be brought within 30 days of service of the notice of appeal or record of appeal; an application filed beyond that period is incompetent.
  • Once a dispute has been finally determined by a competent court and no appeal lies against that determination, a superior court seized of a later suit on the same issue cannot give directions for the implementation of that earlier judgment; execution lies with the court that issued the decree.
  • 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 against a specific decision amounts to waiver of the right to challenge it.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 21st September 2017 seeking to strike out the notice and record of appeal, with costs
  2. 2.Setting aside of the judgment of the High Court delivered on 14th July 2011
  3. 3.Order that costs before the High Court be paid by the respondent
  4. 4.Allowance of the appeal 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 Rules; judgment delivered pursuant to rule 32(3) of the Court of Appeal Rules following the death of Odek, JA

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Esther Angong’a Ngicho v Isdora Opiyo Yogo.respondent", Case Analysis (2020). Civil Appeal No. 94 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/573/eng@2020-06-19

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