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ELCDismissed· [2016] KEELC 368 (KLR)

Joseph Odhiambo v Nyakundi Omari [2016] KEELC 368 (KLR)

High Court of Kenya at Kisii
14 October 2016
JMJ. M. Mutungi
2,308 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to a judge of the High Court at Kisii from a ruling of the Deputy Registrar delivered on 25th May 2015 dismissing the appellant's application dated 17th January 2014 seeking to stay execution of orders issued on 10th January 2014. The appellant contended that the judgment of 16th October 1995 and decree of 21st March 1996 could not be lawfully executed more than 12 years later by virtue of section 4(4) of the Limitation of Actions Act, and further faulted the decree for non-compliance with Order 21 Rules 7 and 8(1) of the Civil Procedure Rules and for discrepancies in the parcel numbers identified. The respondent argued the appeal was filed out of time without leave and that execution had commenced within the limitation period. The court held the appeal was properly filed on 2nd June 2015, the next working day after the Madaraka Day holiday, and that appeals from a Deputy Registrar exercising Order 49 special powers lie as of right without leave under Order 43(2). On the merits, the court found that execution had commenced within 12 years when the suit land was subdivided and the respondent registered as owner of parcel West Kitutu/Bogusero/3456 on 18th March 2000; the 2008 eviction application merely furthered that process, and the 10th January 2014 order only provided security for the previously granted eviction order. The appellant had never challenged the decree or appealed the judgment or eviction order. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the decree executed more than 12 years after judgment was statutorily barred under section 4(4) of the Limitation of Actions Act

Holding

Execution was not barred because the execution process had commenced within 12 years of judgment, when the respondent's portion was subdivided and registered in his name on 18th March 2000

Reasoning

The court found that implementation of the judgment began when the original title West Kitutu/Bogusero/1028 was subdivided and the respondent registered as owner of parcel 3456 on 18th March 2000. The 2008 eviction application was in furtherance of that execution process. Where execution has commenced within the statutory 12-year period, further execution applications are permissible provided 12 years have not elapsed from the last application.

p. 3
02

Whether the appeal was filed out of time without leave

Holding

The appeal was properly filed on 2nd June 2015, the next working day, since 1st June 2015 (Madaraka Day) was a public holiday; and no leave was required under Order 43(2) for an appeal from a Deputy Registrar exercising Order 49 powers

Reasoning

The court applied the provisos of Order 50 rule 4, allowing filing on the next working day when the last day falls on a holiday. On leave, the court construed Order 43(2) as applying only to appeals to higher courts, while appeals from Deputy Registrars exercising special powers under Order 49 lie as of right to a judge under Order 49(7)(2).

p. 2
03

Whether discrepancies in the decree and notice to show cause (identifying different parcel numbers) vitiated the execution

Holding

No; the appellant did not challenge the decree or appeal against the judgment and eviction order, so the decree was executed as those implementing it understood it

Reasoning

The appellant never challenged the decree of 21st March 1996 before implementation, never appealed the judgment of 16th October 1995 or the eviction order of 20th September 2008. Having failed to object, the decree was executed as understood by those implementing it, and the order of 10th January 2014 merely facilitated security for the previously granted eviction order.

p. 4

Legal principles established

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  • Where execution of a decree is commenced within the statutory period of 12 years, further applications for execution may be made provided 12 years have not elapsed since the last application for execution
  • Appeals from decisions of a Deputy Registrar exercising special powers under Order 49 of the Civil Procedure Rules lie as of right to a judge and are not subject to Order 43(2) leave requirements

Court orders

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  1. 1.The appellant's appeal filed on 2nd June 2015 against the decision of the Deputy Registrar delivered on 25th May 2015 is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Limitation of Actions Act Cap 22 Laws of KenyaSection 4(4)
  • Civil Procedure RulesOrder 21 Rule 8(1)
  • Civil Procedure RulesOrder 21 Rule 7
  • Civil Procedure RulesOrder 49(8)(3)
  • Civil Procedure RulesOrder 49(7)(2)
  • Civil Procedure RulesOrder 50 rule 4
  • Civil Procedure RulesOrder 43(2)
On appeal from
High Court of Kenya at Kisii (Deputy Registrar)
Not stated
Jurisdiction invoked
Appellate jurisdiction of a judge of the High Court over appeals from decisions of a Deputy Registrar under Order 49(7)(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Joseph Odhiambo v Nyakundi Omari [2016] KEELC 368 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/368/eng@2016-10-14

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