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ELCPartially AllowedNot stated in the excerpt (Kericho Environment & Land Court; plaintiff's suit filed 31 October 2013)· [2016] KEELC 245 (KLR)

Jackson Kipkemoi Chebochok v Charles Kibet Chepkwony & 2 others [2016] KEELC 245 (KLR)

Environment and Land Court
28 October 2016
MSMunyao Sila
2,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kericho court struck out a landowner's suit because he tried to overturn an existing court decree without first asking the court to set it aside.

What this practically means

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Executive summary

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The defendants filed a notice of motion dated 14 June 2016 under Sections 1A, 1B, 3, 3A, 7, 63(e) and Order 2 Rule 15 of the Civil Procedure Act seeking dismissal of the plaintiff's suit and summary judgment on their counterclaim. The plaintiff, registered owner of Kericho/Kapsaos/725, sued for a permanent injunction restraining the defendants from interfering with the land. The defendants countered that the Ainamoi Land Disputes Tribunal had awarded shares of the land to family members, that the award was adopted as a decree by the Chief Magistrate's Court, and that the plaintiff's judicial review seeking to quash the award was struck out on 30 August 2013 for being filed late. The court held that no order vitiated the award or the ensuing decree, and that the plaintiff had filed no pleadings seeking to set aside the decree; a suit aimed at overturning an existing decree without a set-aside prayer was an abuse of process. The court also noted the plaintiff's admission in his replying affidavit that he holds the land in trust for the 2nd defendant, making his claim against her untenable, and irreconcilable with his assertion that she is of unsound mind. Invoking the DT Dobie principle, the court nonetheless struck out the suit. However, it declined summary judgment on the counterclaim, holding that execution of a decree must be sought in the suit in which the decree was passed, not by a separate suit. Costs of the suit and the application were awarded to the defendants.

Key legal issues

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01

Res judicata / abuse of process

Holding

The suit is struck out as an abuse of process: an unquashed Tribunal award adopted as a decree stands, and the plaintiff seeks to overturn it without any prayer to set it aside, while also suing a beneficiary he admits he holds the land in trust for

Reasoning

The Ainamoi Land Disputes Tribunal award was adopted by the Chief Magistrate's Court and the plaintiff's judicial review to quash it was struck out for being filed late. No pleadings before the court sought to set aside the decree. The plaintiff also admitted in his replying affidavit that he holds the land in trust for the 2nd defendant, contradicting his claim for a permanent injunction against her. Pursuing such a suit risks conflicting decrees and embarrasses justice.

p. 4
02

Summary judgment on the counterclaim

Holding

Refused; the proper procedure for enforcing a decree is execution in the suit where the decree was issued, not a fresh suit

Reasoning

The counterclaim essentially sought execution of the decree issued by the Magistrate's Court adopting the Tribunal award. Section 30 provides that a decree is executed by the court which passed it, and Section 34(1) bars a separate suit to execute a decree. The court considered the counterclaim a separate suit improperly brought for that purpose and declined to enter summary judgment, leaving the applicants at liberty to set the counterclaim down for hearing.

p. 4

Legal principles established

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  • An order issued by a court remains in force and must be obeyed unless and until set aside
  • A party cannot litigate to overturn an existing decree without first pleading a prayer to set aside or attack that decree
  • All questions relating to execution of a decree must be determined by the court executing the decree, not by a separate suit
  • Striking out a pleading is a drastic remedy and courts should be slow to strike out pleadings

Court orders

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  1. 1.The plaintiff's suit is struck out as an abuse of the process of court
  2. 2.The prayer for summary judgment on the defendants' counterclaim is dismissed
  3. 3.Costs of the dismissed suit and of the application awarded to the defendants/applicants

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3, 3A, 7, 63(e), 30, 34(1)
  • Civil Procedure Rules, 2010Order 2 Rule 15(b), (c) and (d)

Cases cited (1)

  • DT Dobie & Co vs Muchina
    (1982) KLR 1
Jurisdiction invoked
Civil Procedure Act, Cap 21, Sections 1A, 1B, 3, 3A, 7, 63(e) and Order 2 Rule 15(b), (c) and (d)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Jackson Kipkemoi Chebochok v Charles Kibet Chepkwony & 2 others [2016] KEELC 245 (KLR)", Case Analysis (2016). Not stated in the excerpt (Kericho Environment & Land Court; plaintiff's suit filed 31 October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/245/eng@2016-10-28

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