Ouru Power Limited & another v Julius Mogaka Gekonde t/a E-Smart Technical College
The bottom line
#Kenya's Court of Appeal confirmed that selling property while a court case over it is pending is contempt, and buyers of such property remain bound by the court's decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in declining to review its orders of 7th March 2016 on the ground of discovery of new and important matter
No error; the sale of the omnibus was within the appellants' knowledge and they failed to exercise due diligence, so the review threshold under Order 45 Rule 1 was not met.
The appellants were served with the injunction application on 28th October 2015, attached the omnibus the next day, and were in court when restraining orders issued on 30th October 2015. They never informed the court of the disposal of the omnibus, and could have sought leave to file a supplementary affidavit before the ruling. The alleged new evidence was therefore neither new nor beyond their knowledge, and they squandered the opportunity to avail it.
Whether the trial court was obliged to consider the 'other sufficient cause' limb of Order 45 Rule 1
Even if the trial court had addressed that limb, the outcome would not have differed because a third-party purchaser of litigated property is bound by the court's decision.
The court invoked the lis pendens doctrine, relying on Carol Silcok v Kassim Sharrif Mohamed and Manwji v U.S. International University (adopting Bellamy v Sabine). Allowing purchasers of property in litigation to escape court decrees would defeat the course of justice and permit parties to dispose of litigated property. Hence the sale to a third party did not constitute sufficient cause for review.
Whether the finding that the 2nd appellant was in contempt of court was warranted
Yes; selling the omnibus in the face of orders restraining interference with the respondent's tenancy was contemptuous, and the absence of a specific order against sale on 30th October 2015 was no defence.
The order of 30th October 2015 was made in the context of a suit complaining of an impending distress for rent; it restrained interference with the tenancy in any manner. Proceeding to sell the suit vehicle pending inter-partes hearing was contemptuous of both the order and the ongoing proceedings. The appellants' claim that they could not comply because the vehicle was with a third party did not excuse the willful disobedience.
Whether the review application would amount to the court sitting on appeal on its own decision
The trial court was right that granting review over the omnibus, having extensively pronounced on the legality of its seizure, would be akin to sitting on appeal on its own judgment.
The ruling of 7th March 2016 had already extensively addressed the propriety of the seizure of the omnibus and the institution of parallel proceedings before the Magistrate's Court in disregard of res sub judice. Revisiting those findings on review would circumvent the limits of the review jurisdiction, which is not an avenue to re-argue matters already decided.
Legal principles established
#- A third party who purchases property that is the subject of litigation is bound by the decision of the court in that litigation (lis pendens).
- An order restraining interference with a plaintiff's tenancy covers any action of distress for rent pending the outcome of the application, even without a specific order against sale of attached goods.
- A court will not grant review where the alleged new evidence was within the applicant's knowledge and the applicant failed to exercise due diligence under Order 45 Rule 1.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Kisii
- Kisii HCC No. 34 of 2015
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act (appeal from High Court ruling); review power under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouru Power Limited & another v Julius Mogaka Gekonde t/a E-Smart Technical College", Case Analysis (2022). Civil Appeal 14 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1030/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.