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ELCDismissedNot stated in judgment (application dated 18/1/2017, filed 6/2/2017)· [2017] KEELC 934 (KLR)

Antony Ayieko Oluoch & another v Francis Oluoch Juma [2017] KEELC 934 (KLR)

High Court of Kenya
29 November 2017
AKA. K. Kaniaru
1,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled it cannot take over a concluded case for execution—transfer powers apply only before judgment.

What this practically means

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Executive summary

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The Applicants, Antony Ayieko Oluoch and Christopher Ameja Atsieno, applied under Sections 1, 3A and 18 of the Civil Procedure Act (cap 21) for the transfer of CMC land case No. 138 of 2011 from the lower court to the High Court for enforcement, execution and directions. The lower court matter arose from a decision of the defunct Butula Land Disputes Tribunal awarding the 1st Applicant half an acre of parcel No. L.R. MALACHI/ELUKHARI/1280, which findings were adopted as judgment of the lower court. When the Applicants sought execution, the lower court allegedly declined citing lack of jurisdiction. The Respondent opposed, pointing out that judgment had been entered, only execution remained, and that the lower court had on 23/11/2015 granted his application dated 18/8/2015 for stay of execution pending determination of related ELC No. 85 of 2013. The court found that Section 18 of the Civil Procedure Act is directed at the pre-judgment trial stage and uses words such as 'tries' and 'retry', and therefore does not apply to concluded matters at the execution stage. The court also found the 1st Applicant had lied on oath by deposing that the stay application was declined when it had been allowed, invoking the maxim falsus in uno, falsus in omnibus, and expressed disfavour towards him. The court further doubted how a lower court could cite lack of jurisdiction over a matter it had already concluded. The application was dismissed with costs on 29 November 2017.

Key legal issues

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01

Scope of Section 18 of the Civil Procedure Act regarding transfer of concluded matters

Holding

Section 18 does not apply to concluded matters; it governs un-concluded suits and proceedings, using words like 'tries' and 'retry', so a matter already reduced to judgment and at execution stage cannot be withdrawn or transferred under it

Reasoning

The court read subsections 18(1)(b) and 18(2) and found the provision directed at trial-stage matters. Since judgment had been entered in CMC 138/2011 and only execution remained, there was nothing for the High Court to try or retry. The court also doubted how a lower court could cite lack of jurisdiction at the execution stage of a matter it had concluded.

p. 2
02

Credibility of the 1st Applicant's affidavit evidence

Holding

The 1st Applicant lied on oath by deposing that the stay application dated 18/8/2015 was declined when the lower court had in fact allowed it on 23/11/2015, attracting the maxim falsus in uno, falsus in omnibus and disfavour from the court

Reasoning

The lower court's ruling of 23/11/2015 allowed the stay application dated 18/8/2015, yet the 1st Applicant deponed that it was declined. Applying the maxim falsus in uno, falsus in omnibus, the court found it could not tell what other lies he had told and declined to look on him favourably, reinforcing dismissal.

p. 2

Legal principles established

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  • Section 18 of the Civil Procedure Act confers power on the High Court to withdraw or transfer matters only at the pre-judgment (trial) stage, not at the post-judgment execution stage

Court orders

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  1. 1.The application dated 18/1/2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (cap 21)Section 1
  • Civil Procedure Act (cap 21)Section 3A
  • Civil Procedure Act (cap 21)Section 18(1)(b) and 18(2)
Jurisdiction invoked
Sections 1, 3A and 18 of the Civil Procedure Act (cap 21)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Antony Ayieko Oluoch & another v Francis Oluoch Juma [2017] KEELC 934 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 18/1/2017, filed 6/2/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/934/eng@2017-11-29

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