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ELCPartially AllowedNotice of motion dated 16th May 2012· [2017] KEELC 2136 (KLR)

Ndagara w/o Kaumbuthu Substituted by Peter Murithi Nyaga & another v Mbogo Katharangushu (Deceased substituted by Nyaga s/o Mbogo (Dec) & 5 others [2017] KEELC 2136 (KLR)

High Court of Kenya
27 July 2017
1,447 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 cancelled a 2011 decree built on a 1987 judgment because Kenyan law blocks judgment enforcement after twelve years.

What this practically means

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Executive summary

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The applicants/aggrieved parties, through advocate Moris Gachura Njage, moved the court by notice of motion dated 16th May 2012 under Order 45 of the Civil Procedure Rules seeking review of a decree dated 9th April 1987 and extracted on 23rd February 2011. They advanced three grounds: an error apparent on the face of the record, fraudulent extraction of the decree, and discovery of new and important matter. On limitation, they argued the decree was extracted about 24 years after judgment, contrary to section 4(4) of the Limitation of Actions Act, and in violation of Order 21 Rule 8. They further alleged the judgment had been set aside when the original file went missing, that material facts were concealed from the court, and that a 2011 registration of the suit property in the decree holder's name caused a double registration in violation of natural justice. The decree holder opposed, denying that the judgment was set aside or the file transferred to Embu, disputing the genuineness of the will under which the applicants claimed, and asserting the court itself issued the decree after the file went missing for some six years. The court held there was no evidence the 1987 judgment was set aside, but found that execution of the decree was barred by section 4(4) of the Limitation of Actions Act, following the authority relied on by the applicants. That limitation bar amounted to an error of law apparent on the face of the record justifying review, rendering unnecessary any decision on fraud, Order 21 Rule 8, or new matter. The application was allowed in terms of prayer 1, with no order as to costs.

Key legal issues

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01

Whether a decree extracted 24 years after judgment is statute-barred

Holding

Yes - execution of a decree on a 1987 judgment is impermissible after 12 years under section 4(4) of the Limitation of Actions Act

Reasoning

The court applied section 4(4) of the Limitation of Actions Act, which bars actions upon a judgment after twelve years from the date of delivery, together with the authority in Njuguna v Njau relied on by the applicants. A decree extracted in 2011 on a judgment delivered on 9th April 1987 was therefore time-barred, and this constituted an error of law apparent on the face of the record justifying review.

p. 3
02

Whether the 1987 judgment had been set aside

Holding

No - there was no evidence that the judgment was set aside

Reasoning

The aggrieved parties alleged that the judgment had been set aside in a skeleton file while the original file was missing. The court found no evidence on the record of any such setting aside and noted that no date of setting aside was mentioned in the application, so it could not accept that allegation.

p. 3
03

Whether grounds of review under Order 45 were established

Holding

Review was granted on the ground of an error of law apparent on the face of the record

Reasoning

Order 45 Rule 1(1) permits review on discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason. The court found the limitation bar constituted such an error and did not need to decide the fraud or new-matter grounds.

p. 3

Legal principles established

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  • Execution of a decree upon a judgment may not be pursued after twelve years from the date the judgment was delivered, under section 4(4) of the Limitation of Actions Act

Court orders

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  1. 1.The notice of motion dated 16th May 2012 is granted in terms of prayer No. 1 thereof (review of the decree dated 9th April 1987 and extracted on 23rd February 2011)
  2. 2.There shall be no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 21 Rule 8
  • Limitation of Actions Act (Cap 22)section 4(4)

Cases cited (1)

  • Njuguna Vs Njau
    [1981] 2KLR 93
Jurisdiction invoked
Order 45 of the Civil Procedure Rules (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndagara w/o Kaumbuthu Substituted by Peter Murithi Nyaga & another v Mbogo Katharangushu (Deceased substituted by Nyaga s/o Mbogo (Dec) & 5 others [2017] KEELC 2136 (KLR)", Case Analysis (2017). Notice of motion dated 16th May 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2136/eng@2017-07-27

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