Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNairobi High Court Civil Appeal (judgment delivered 3rd November 2017)· [2017] KEELC 594 (KLR)

Salome Mumbi Karumba v Stephen Ndichu Njihia [2017] KEELC 594 (KLR)

High Court of Kenya
3 November 2017
7,246 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court cancelled eviction orders made against a landowner without proper notice, hearing, or a valid court judgment behind them.

What this practically means

#

Executive summary

#
The appellant sued the respondent in Thika CMCC No. 168 of 1991 claiming trespass on Plot Ruiru/Ruiru East/Block 2/340, which she held as a shareholder of Nyakinyua Investments. By consent, the ownership question was referred to the company, whose secretary filed a report treated as an arbitration award finding the property belonged to the respondent's wife, not the respondent. The appellant's application to set aside the award was dismissed in January 1992 and her ensuing High Court appeal struck out in 1999. After a 17-year lull, the respondent obtained ex parte orders in the lower court directing the Land Registrar to issue him a title deed, was registered as owner in 2010, and obtained the appellant's eviction. The magistrate dismissed the appellant's application to set aside the eviction orders, holding she raised technicalities and that the court was functus officio. On appeal, Okong'o J held the proceedings were riddled with irregularities: the award was never adopted as a judgment, the respondent filed no defence or counter-claim, the appellant was never validly served and had a constitutional right to be heard, execution was time-barred under section 4(4) of the Limitation of Actions Act, and no notice to show cause was served. The court allowed the appeal, set aside the ruling and orders of 27th June 2011, allowed the appellant's Chamber Summons dated 1st November 2010 in terms of prayers (c), (d) and (f), and awarded her the costs of the appeal.

Key legal issues

#
01

Whether the arbitration award constituted a judgment and decree of the lower court

Holding

The award was never adopted as a judgment; the respondent never applied for judgment in terms of the award under Order XLV rule 17(1), so no decree existed capable of execution.

Reasoning

The court found that although the ownership dispute was validly referred to arbitration and the award read to parties, the award only dealt with ownership and did not dispose of the trespass claim. Under the old Civil Procedure Rules, judgment had to be entered in accordance with the award before a decree could issue. Since no such application was made, the purported decree was invalid and there was nothing to execute.

p. 8
02

Whether the orders directing issuance of a title deed to the respondent and evicting the appellant were validly made

Holding

The orders were irregular, made without service or hearing, without pleadings or counter-claim by the respondent, and had no basis in the award or pleadings.

Reasoning

The respondent filed neither defence nor counter-claim; the award found the property belonged to his wife, a stranger to the suit; the property was doubly registered; and the applications were served by means (registered post to a wrong address, and through a chief) that were ineffective since the appellant had an advocate on record. The effect was to cancel the appellant's title without a hearing.

p. 9
03

Whether the execution proceedings were time-barred

Holding

Execution commenced in 2009 was time-barred, being more than 12 years after the purported judgment of 26th July 1991.

Reasoning

Section 4(4) of the Limitation of Actions Act bars execution of judgments after 12 years. Even assuming judgment was entered on 26th July 1991, the execution period lapsed in 2003. Additionally, no notice to show cause under Order XXI rule 18 was served as required for execution after one year.

p. 10
04

Whether the lower court erred in holding it was functus officio and treating the issues raised as technicalities

Holding

The court erred: it had inherent power, Order L rule 17 and section 34 of the Civil Procedure Act conferred power to set aside the orders, and the issues raised were substantive, not technical.

Reasoning

The issues concerned the rule of law and administration of justice, including the right to be heard. The court had inherent power and statutory power to set aside ex parte orders, and questions relating to execution of a decree had to be determined by the court executing the decree under section 34 of the Civil Procedure Act.

p. 12

Legal principles established

#
  • An arbitral award does not become a judgment of the court unless judgment is entered in accordance with the award upon an application by the party seeking to rely on it; without such judgment no decree can issue or be executed.
  • Execution of a judgment must be commenced within 12 years under section 4(4) of the Limitation of Actions Act, and where execution is sought after one year, notice to show cause must be served under Order XXI rule 18.
  • Where a person entitled to be served with an application was not served and orders were made adversely to them, they have a right to have the orders set aside ex debito justitiae.
  • An appellate court will not interfere with the exercise of discretion by a lower court unless it misdirected itself or its decision is clearly wrong and results in misjustice.

Court orders

#
  1. 1.The ruling and orders made by Hon. B.A Owino SRM on 27th June, 2011 in the lower court are set aside
  2. 2.The appellant’s Chamber Summons application dated 1st November, 2010 in the lower court is allowed in terms of prayers (c), (d) and (f) thereof
  3. 3.The appellant shall have the costs of the appeal

Authorities

#

Legislation

  • Limitation of Actions Act, Chapter 22 Laws of KenyaSection 4(4)
  • Registered Land Act, Chapter 300 Laws of KenyaSections 27 and 28
  • Civil Procedure ActSection 34
  • old Civil Procedure RulesOrder XLV rule 15
  • old Civil Procedure RulesOrder XLV rules 17(1) and 17(2)
  • old Civil Procedure RulesOrder XXI rule 18
  • old Civil Procedure RulesOrder L rule 17
  • Constitution of Kenyaprotection of sanctity of title (grounds of appeal)

Cases cited (4)

  • Mbogo Vs. Shah
    (1968) E. A. 93
  • Maina –vs- Mugiria
    [1983] KLR 78
  • Richard Nchapi Leiyangu vs. IEBC & 2 others
    Civil Appeal No. 18 of 2013
  • National Bank of Kenya Ltd –vs- Ndungu Njau
    Civil Appeal No. 211 of 1996
On appeal from
Chief Magistrate’s Court at Thika
Thika CMCC No. 168 of 1991
Jurisdiction invoked
First appellate jurisdiction of the High Court over appeals from the magistrates' court (appeal against ruling of Hon. B.A. Owino SRM dated 27th June 2011)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salome Mumbi Karumba v Stephen Ndichu Njihia [2017] KEELC 594 (KLR)", Case Analysis (2017). Nairobi High Court Civil Appeal (judgment delivered 3rd November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/594/eng@2017-11-03

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