Joseph Cheruiyot & 2 others v Wilson Busienei & 19 others [2018] KEELC 4477 (KLR)
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
#Key legal issues
#Functus officio in the context of execution of a decree
The Magistrate's court was not functus officio because it was merely enforcing its decree, not altering it
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.
Res judicata regarding the application of 29th January 2007
The application was not res judicata; the appellants placed no prior decision covering the same parties and issues before the court
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.
Irregular subdivisions in breach of the decree
The appellants' subdivision of the parcels into 15 portions was inconsistent with the decree and properly declared null and void
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.
Duty of a first appellate court
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
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.The appeal is dismissed with costs to the respondent
- 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
- 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.