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ELCPartially AllowedNot stated in the ruling (ruling on 1st Defendant's Notice of Motion dated 10th April, 2014)· [2018] KEELC 3603 (KLR)

Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & another [2018] KEELC 3603 (KLR)

High Court of Kenya
19 April 2018
2,675 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court voided a decree and attached warrants because the winning party skipped mandatory steps in preparing and executing the decree.

What this practically means

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Executive summary

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Following judgment entered in favour of the Plaintiff on 1st August, 2013, the Plaintiff's advocates wrote to the Deputy Registrar on 13th August, 2013 seeking to execute before taxation of costs; the Deputy Registrar granted this on 15th August, 2013 and signed and sealed a decree on 16th August, 2013 without forwarding it to the 1st Defendant's advocates for approval. Warrants of attachment followed, and the 1st Defendant's earlier stay application was dismissed, the court leaving the regularity questions to separate proceedings. The 1st Defendant then filed the Notice of Motion dated 10th April, 2014 seeking declarations that the decree and warrants were null and void, approval of a fresh decree with input of both advocates, cancellation of the warrants, and costs. The Plaintiff maintained that the decree accorded with the judgment and that opposite-party approval was not mandatory. The court held that the Order 21 Rule 8 procedure for preparing decrees is mandatory, not discretionary, and that the Deputy Registrar had no power to seal a decree not sent for approval; the decree was a nullity, compounded by an inflated interest computation of several millions. Under section 94 of the Civil Procedure Act, execution before costs are ascertained requires leave of the court; the Deputy Registrar is not the High Court, so his consent was granted without jurisdiction and was a nullity. The application was allowed in terms of prayers 4, 5, 6, 7, 8 and 9; the Plaintiff must restart preparation of the decree under Order 21 Rule 8 and pay the application and auctioneers' costs.

Key legal issues

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01

Whether approval of a draft decree by the opposite party before sealing is mandatory under Order 21 Rule 8 of the Civil Procedure Rules

Holding

The procedure is mandatory, not discretionary; a decree sealed without compliance is a nullity.

Reasoning

The court held that Order 21 Rule 8 was meant to ensure fair play in preparing the executable document and to prevent disputes over the import of decisions; it contains an inbuilt dispute-resolution mechanism. Departure from it renders the decree a nullity, as does everything done on the strength of it, including execution.

p. 3
02

Whether the decree extracted by the Plaintiff accorded with the judgment

Holding

The decree did not accord with the judgment; interest on the loss-of-profits award was inflated by several millions.

Reasoning

The court found errors apparent on the face of the decree: the aggregate sum of Kshs.13,918,333.33 for loss of profits accruing monthly could not all attract interest from the date of filing suit on 28th May, 1990, so interest was materially inflated.

p. 3
03

Whether the Deputy Registrar had jurisdiction to authorise execution before taxation of costs

Holding

Section 94 requires leave of the court; the Deputy Registrar's letter-based consent was granted without jurisdiction and was a nullity.

Reasoning

Order 22 Rule 7(2) requires the amount of costs to be stated in an execution application, so costs must first be ascertained. Section 94 permits execution before ascertainment only with the court's leave; the Deputy Registrar is not the High Court, so his purported consent to the Plaintiff's letter application was a nullity, rendering the warrants irregular.

p. 3

Legal principles established

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  • The procedure in Order 21 Rule 8 for preparation of decrees is mandatory; a decree signed and sealed without following it is a nullity, as are proceedings founded on it.
  • The Deputy Registrar has no power to sign and seal a decree that has not been sent to the other party for approval.
  • Under section 94 of the Civil Procedure Act, execution before costs are ascertained requires leave of the court; the Deputy Registrar is not the High Court and cannot grant such leave.
  • An order made without jurisdiction is a nullity.

Court orders

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  1. 1.Declaration that the decree dated 16th August, 2013 drawn without submission to the 1st Defendant for approval is contrary to the judgment and null and void (prayer 4)
  2. 2.Declaration that the warrants of attachment issued under the illegal decree are equally illegal and a nullity (prayer 5)
  3. 3.Order that the decree be approved as drawn with the input of both parties' advocates in terms of Order 20 Rule 7 (prayer 6)
  4. 4.Confirmation and declaration that the warrants dated 4th April, 2014 are null and void for want of jurisdiction and breach of Section 94 of the Civil Procedure Act (prayer 7)
  5. 5.Declaration that the Deputy Registrar's purported grant of authority to execute before taxation was without jurisdiction, ultra vires and null and void (prayer 8)
  6. 6.Cancellation of the warrants of attachment dated 4th April, 2014 issued pursuant to the Deputy Registrar's illegal authorization (prayer 9)
  7. 7.The Plaintiff to start afresh the process of preparing the decree in accordance with Order 21 Rule 8 of the Civil Procedure Rules
  8. 8.The Plaintiff to pay the costs of the application and the auctioneers costs incidental to the warrants issued irregularly

Authorities

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Legislation

  • Civil Procedure Actsections 3A, 9A, 34(1), 94
  • Civil Procedure RulesOrder 20 Rule 7, Order 21 Rules 7 and 8(2), 8(3), Order 22 Rule 7(2), Order 49 Rules 1 and 2, Order 51 Rule 1
  • Old Civil Procedure RulesOrder XX Rules 6(1) and 7

Cases cited (3)

  • Highway Furniture Mart Limited Vs. Permanent Secretary Office of the President & Another
    (2006) eKLR
  • Bamburi Portland Cement Co. Ltd. -Vs- Imrani Chandhai Abdulhusein
    Mombasa Court of Appeal Civil Appeal No. 83 of 1995
  • Kabitao Karanja vs. Attorney General
    Nyeri Civil Appeal No. 310 of 1997
Jurisdiction invoked
Section 34(1) of the Civil Procedure Act (questions relating to execution, discharge or satisfaction of the decree determined by the court executing the decree) read with section 3A and 9A of the Civil Procedure Act and Order 21, Order 49 and Order 51 of the Civil Procedure Rules

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, "Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & another [2018] KEELC 3603 (KLR)", Case Analysis (2018). Not stated in the ruling (ruling on 1st Defendant's Notice of Motion dated 10th April, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3603/eng@2018-04-19

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