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ELCDismissedNot stated in judgment (suit filed 28/3/2017)· [2018] KEELC 697 (KLR)

Isaac Ouma Nyabera v County Government of Busia [2018] KEELC 697 (KLR)

High Court of Kenya
27 November 2018
861 words in judgment
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The bottom line

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Kenya's High Court refused to stop execution of a land judgment against Busia County, ruling the application was a belated, bad-faith attempt to avoid paying up.

What this practically means

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Executive summary

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The County Government of Busia, Defendant in a land suit, moved the court by Notice of Motion dated 1/8/2018 under Sections 1A, 1B, 3A, 34 and 63(e) of the Civil Procedure Act and Order 22 Rules 22 and 25 seeking stay of execution of the judgment entered against it. The stay was sought pending hearing of an application for reconstruction of a lost court file and an intended application to set aside exparte objection proceedings in Busia High Court Succession Cause No. 205 of 2009, in which a grant had allotted the Applicant 0.7Ha in land parcel MARACHI/BUJUMBA/2414 before revocation. The Respondent, Isaac Ouma Nyabera, opposed the application as an unmerited, bad-faith attempt to circumvent a decree that had not been appealed, reviewed or set aside. The court noted that the suit was filed on 28/3/2017 with a copy of the search and the Respondent's title deed attached, giving the Applicant every opportunity to challenge ownership, yet the Defendant filed a defence of mere denials and adduced no evidence at hearing. The objection proceedings sought to be challenged had occurred long before, and the Applicant's delay was attributed to its own inaction rather than lack of diligence. Holding that nothing new justified the orders sought and that the Applicant could not read due diligence into its conduct, the court dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether stay of execution should issue pending a collateral challenge to earlier objection proceedings

Holding

Stay was refused; the application was unmeritorious as the intended challenge was belated and nothing new justified the orders

Reasoning

The suit was filed in March 2017 with a copy of the search and the Respondent's title deed, which should have alerted the Applicant to challenge ownership. The Defendant filed a defence of mere denials and adduced no evidence at trial. The proceedings intended to be challenged took place long before, and the Applicant could have mounted the objection when the suit was filed but did not act. The lost file does not excuse the lack of diligence.

p. 2
02

Whether the application was brought in good faith

Holding

The court agreed with the Respondent that the application was an attempt to circumvent compliance with the decree

Reasoning

The Respondent pointed out that judgment was unappealed, with no review or setting-aside application, and that the Applicant refused to comply with the decree. The court agreed with the averments in the replying affidavit, finding the Applicant belatedly seeking to challenge the Respondent's title only when execution had become an inescapable reality.

p. 2

Legal principles established

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  • A party who had the opportunity to litigate an issue when the suit was pending cannot belatedly obtain stay of execution to mount a collateral challenge after judgment

Court orders

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  1. 1.The Notice of Motion dated 1/8/2018 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 34, 63(e)
  • Civil Procedure RulesOrder 22 Rules 22 and 25; Order 51 Rule 1
  • Judicature ActNot specified
Jurisdiction invoked
Sections 1A, 1B, 3A, 34 and 63(e) of the Civil Procedure Act (Cap 21), Order 22 Rules 22 and 25 and Order 51 Rule 1 of the Civil Procedure Rules, the Judicature Act and inherent powers of the court

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, "Isaac Ouma Nyabera v County Government of Busia [2018] KEELC 697 (KLR)", Case Analysis (2018). Not stated in judgment (suit filed 28/3/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/697/eng@2018-11-27

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