Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEldoret CMC Award No. 61 of 2001 (appeal against ruling of 15.11.2007)· [2018] KEELC 4477 (KLR)

Joseph Cheruiyot & 2 others v Wilson Busienei & 19 others [2018] KEELC 4477 (KLR)

High Court of Kenya at Eldoret
9 February 2018
5,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

The High Court confirmed that once a Tribunal award becomes a court decree in Kenya, it must be obeyed and enforced until properly set aside.

What this practically means

#

Executive summary

#
This is a first appeal to the High Court at Eldoret (A. Ombwayo, J) against a ruling of 15th November 2007 by Hon. W. N. Njage, Principal Magistrate, in Eldoret CMC Award No. 61 of 2001. The underlying dispute arose from a Soy Land Disputes Tribunal award dated 31st December 2001, adopted as judgment of the Chief Magistrate's Court on 18th June 2002, decreeing that land parcels LR Nos. 8822, 6617 and 8637 be shared among 22 persons according to their contributions. A decree issued on 15th December 2006. The appellants, having failed in a judicial review application (withdrawn in November 2006) and a fresh High Court suit (struck out in May 2007), subdivided the land into 15 portions contrary to the decree. The respondents applied under section 34(1) of the Civil Procedure Act, and the Magistrate declared the subdivisions irregular, illegal, null and void, cancelling the resulting deed plans. On appeal, the appellants argued the Magistrate was functus officio after adopting the award, that the application was res judicata given Eldoret HCCC No. 12 of 2002, that titles issued before the decree were wrongly cancelled, and that the decree had been overtaken by events. The High Court held the appeal was against the enforcement ruling, not the award; the court executing a decree is not functus officio and questions of execution must be determined under section 34(1) CPA rather than by separate suit; the matter was not res judicata; and the decree, never set aside by any recognised procedure, remains binding. The appeal was dismissed with costs to the respondents.

Key legal issues

#
01

Functus officio in the context of execution of a decree

Holding

The Magistrate's court was not functus officio because it was merely enforcing its decree, not altering it

Reasoning

The doctrine of functus officio applies only once proceedings are fully concluded and the judgment or order perfected. The court below did not review or alter its decision; it determined questions arising on execution under section 34(1) of the Civil Procedure Act. A court cannot be functus officio while there remains something it ought to do to complete implementation of its decree.

p. 6
02

Res judicata regarding the application of 29th January 2007

Holding

The application was not res judicata; the appellants placed no prior decision covering the same parties and issues before the court

Reasoning

The applicants were merely asking the court to ensure the decree was executed in the terms it was drawn. The issues in Eldoret HCCC No. 12 of 2002 did not deal with the decree in issue, and no copy of any decision establishing res judicata was placed before the Magistrate.

p. 6
03

Irregular subdivisions in breach of the decree

Holding

The appellants' subdivision of the parcels into 15 portions was inconsistent with the decree and properly declared null and void

Reasoning

The decree provided that the subject parcels be divided amongst all the owners in accordance with each person's contribution per the list submitted to the Tribunal. The appellants subdivided for their own benefit, excluding the respondents, and the deed plan was dated 26/11/2004, long after the decree of 18th June 2002.

p. 6
04

Duty of a first appellate court

Holding

The first appellate court must evaluate the evidence afresh and draw its own conclusions, bearing in mind the trial court's advantage of hearing witnesses

Reasoning

Relying on Okeno v Republic, the court acknowledged its duty to re-evaluate the evidence, though the appeal here concerned enforcement of the decree rather than the Tribunal's award itself.

Legal principles established

#
  • Once a Tribunal award is adopted as a judgment of the Magistrate's court, it becomes a decree of the court enforceable under the Civil Procedure Act
  • A court executing a decree under section 34(1) CPA is not functus officio; it may determine questions arising on execution, discharge or satisfaction of the decree
  • A decree of a court of law binds the parties unless varied or set aside by recognised procedure

Court orders

#
  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The ruling of the lower court of 15.11.2007 stands; the decree of 18th June 2002/15th December 2006 remains in force and is to be enforced to the letter

Authorities

#

Legislation

  • Land Disputes Tribunals Act 1990s. 7(2)
  • Land Disputes Tribunals Act 1990s. 8
  • Civil Procedure Act, Cap 21s. 34(1)
  • Civil Procedure Act, Cap 21Part III, sections 28-51; Order 22 (previously Order XXI)
  • Land Act 2012repealing the Land Disputes Tribunals Act
  • Registration of Titles Actsubdivisions thereunder (referred to in grounds of appeal)

Cases cited (7)

  • Okeno vs Republic
    (1972) E.A. 32
  • Jnm Versus Jnm
    [2015] eKLR
  • Jersey Evening Post Ltd v. Ai Thani
    (2002) JLR 542 at 550
  • Crispinus Nyongesa Ouna V. Wabwire Okonyoro & Others
    [2013] eKLR
  • R v. Chairman Land Disputes Tribunal, Kirinyaga District & Another Ex parte Kariuki
    (2005) 2 KLR 10
  • Alfred Sagero Omweri V. Kennedy Omweri Ondieki
    [2015] eKLR
  • Joseph Nderitu Wamathai V. Joseph Ndungu Njoroge & 2 Others
    [2007] eKLR
On appeal from
Chief Magistrate's Court, Eldoret
Award No. 61 of 2001/2002
Jurisdiction invoked
First appellate jurisdiction over appeal from the Magistrate's Court ruling on enforcement of decree

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Cheruiyot & 2 others v Wilson Busienei & 19 others [2018] KEELC 4477 (KLR)", Case Analysis (2018). Eldoret CMC Award No. 61 of 2001 (appeal against ruling of 15.11.2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4477/eng@2018-02-09

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