Winnie Mwaka Mjambili & 1 other v Aisha Said Amri & 1 other
The bottom line
#The Court of Appeal dismissed Kenyan decree-holders' attempt to execute land orders against an occupier who was never a party to the underlying case.
What this practically means
#Executive summary
#Key legal issues
#Whether a supplementary record of appeal filed without leave, almost six years after lodging the appeal and containing post-ruling decisions, is properly on record
It is not; the Supplementary Record of Appeal was expunged and the submissions based thereon disregarded
Rule 90 confines an appellant's supplementary record to documents omitted from the record of appeal, filed without leave within 15 days or later with leave of the deputy registrar. The documents here were judgments and orders issued between 2018 and 2023, after the impugned ruling, and constitute additional evidence admissible only on an application under rule 31, which was never made. Following I&M Bank v Synergy Industrial Credit, the Court found the record improperly on record and expunged it.
Whether the ELC erred in dismissing the application under Order 22 rules 82 and 83 of the Civil Procedure Rules for orders to remove obstruction to execution of the decree
No error; Order 22 rule 83 did not apply because the 1st respondent was neither the judgment-debtor nor acting at the judgment-debtor's instigation, and her resistance was a good-faith claim to possession on her own account attracting rule 84
The 1st respondent was not a party to HCCC No. 349 of 1998 or ELC Case No. 150 of 2015 (OS), and no evidence showed she acted at the judgment-debtor's instigation, so rule 83 did not apply. Her uncontroverted claim of long occupation, family developments and proprietary interest through her grandfather meant her resistance was in good faith. Executing against a non-party without a hearing would offend natural justice; the competing claims required determination on evidence at a full trial, not a miscellaneous execution application.
Whether the dispute over entitlement to the suit land could be resolved in the miscellaneous application
It could not; a miscellaneous application in execution proceedings cannot determine contentious competing claims to land, which require a substantive suit and a full trial
Adopting Nairobi West Hospital v Joseph Kariha, the Court agreed with the learned Judge that substantive orders could not be granted in a summary miscellaneous application because it may not afford parties the opportunity to be heard. The parties' competing claims to the suit property were contentious and evidence-based, requiring the institution of a substantive claim by either party and determination at a full trial.
Legal principles established
#- An appellant may lodge a supplementary record of appeal without leave only within 15 days of lodging the record of appeal, and only to include documents omitted from the record; documents filed outside that window and containing new material require an application for leave to adduce additional evidence under rule 31
- Execution may not be ordered against a non-party claiming in good faith to be in possession of the property on her own account; such resistance is governed by Order 22 rule 84 and the competing claims must be determined on evidence at a substantive trial, not in a miscellaneous application in execution proceedings
- A miscellaneous application is unsuitable where substantive orders are sought, as it may not afford the parties the opportunity to be heard
Court orders
#- 1.The appellants' Supplementary Record of Appeal is expunged from the record and the submissions based thereon are disregarded
- 2.The appeal is dismissed
- 3.The ruling and orders of the ELC at Malindi (J. O. Olola, J.) dated 29th November 2017 are upheld
- 4.Each party to bear their own costs
- On appeal from
- Environment and Land Court at Malindi
- Misc. Application No. 10 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules from the Environment and Land Court (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Winnie Mwaka Mjambili & 1 other v Aisha Said Amri & 1 other", Case Analysis (2025). Court of Appeal Appeal from ELC Misc. Application No. 10 of 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/886/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.