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ELCPartially AllowedNairobi ELC Civil Appeal Number 36 of 2017 (formerly Nairobi HCCA No 690 of 2000)· [2019] KEELC 3 (KLR)

John W Karimi v Board Of Governors Buruburu Secondary School [2019] KEELC 3 (KLR)

Environment and Land Court
26 February 2019
BEB M Eboso
983 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can enforce a consent settlement in the same file where it was recorded, even years after the case was marked withdrawn.

What this practically means

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Executive summary

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This was a notice of motion dated 17/7/2018 filed in Nairobi ELC Civil Appeal No 36 of 2017 (formerly Nairobi HCCA No 690/2000), an appeal transferred to the Environment and Land Court from the High Court. The appeal had been compromised on 3/2/2003 by a consent recorded before Aganyanya J: the principal sum of Kshs 462,500 plus interest held in a joint Barclays Bank account was to be released to the respondent; the applicant was to pay outstanding rates and land rent on the suit premises for 2001-2003; upon payment the respondent was to execute a transfer of the suit premises to the applicant; the appeal was marked as withdrawn with costs to the respondent; and parties were given liberty to apply. Roughly fifteen years later, the applicant sought to take out execution in the appellate file instead of the trial court file (Nairobi RMCC 4607 of 1995), alternatively transfer of the trial file to the ELC and consolidation of the two files, on the ground that the trial court had indicated it lacked jurisdiction to execute the High Court's orders. The respondent opposed, deposing through Consolata Kimuya that the applicant never complied with the first limb of the consent and that the suit property had since been sold to Peter Ng'ang'a in 2004 and developed. Eboso J held that the consent, while marking the appeal withdrawn, assigned specific obligations to the parties and granted liberty to apply; the forum for enforcing those obligations, including the costs award, is the ELC file in which the consent was recorded. The court allowed execution proceedings to be initiated in that file, subject to limitation law, and held the alternative transfer and consolidation prayers unnecessary.

Key legal issues

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01

Whether execution/enforcement of the consent order and decree of 3/2/2003 can issue in the appellate file that was marked as withdrawn

Holding

Yes - the consent marked the appeal withdrawn but preserved liberty to apply and assigned obligations; the proper forum for enforcement is this court, and parties may initiate execution in this file subject to limitation law

Reasoning

The court reasoned that the consent did more than withdraw the appeal: it assigned specific obligations (release of funds, payment of rates, execution of transfer) and awarded costs, and expressly granted parties liberty to apply. The word 'withdrawn' must therefore be read in that context. Since the consent was recorded in this appellate file before Aganyanya J, the ELC as successor to that file is the proper platform for enforcing both the obligations and the costs award.

p. 2
02

Whether the trial court file should be transferred and consolidated with the appellate file

Holding

No - having found that this court is the proper forum for enforcement, the alternative relief of transfer and consolidation was unnecessary

Reasoning

The primary prayer was to take out execution in the appellate file; transfer of the trial file and consolidation were pleaded only in the alternative. Once the court determined that execution may issue in the ELC file itself, the alternative remedies served no purpose and were declined as unnecessary. Any execution remains subject to the applicable law on limitation.

p. 2

Legal principles established

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  • Where a consent order compromises and disposes an appeal while assigning specific obligations to the parties and granting liberty to apply, 'withdrawn' must be interpreted within the context of those obligations and the liberty to apply; enforcement of such obligations lies in the court in which the consent was recorded

Court orders

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  1. 1.Declaration that the forum for enforcing the obligations assigned through the consent order/decree recorded before Aganyanya J on 3/2/2003 is this court (the Environment and Land Court)
  2. 2.Parties to the withdrawn appeal are at liberty, subject to the applicable law on limitation, to initiate execution proceedings in this file (Nairobi ELC Civil Appeal No 36 of 2017)
  3. 3.The alternative plea (transfer of RMCC 4607 of 1995 and consolidation) declared unnecessary

Authorities

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Legislation

  • Applicable law on limitation (not specifically named)Limitation of actions law (referred to generically as 'the applicable law on limitation')
On appeal from
Senior Principal Magistrate's Court (Nairobi RMCC 4607 of 1995)
Nairobi RMCC 4607 of 1995
Jurisdiction invoked
Appellate and supervisory jurisdiction of the Environment and Land Court over transferred High Court civil appeals concerning land (Nairobi HCCA No 690/2000 transferred to ELC and designated Nairobi ELC Civil Appeal No 36 of 2017)

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, "John W Karimi v Board Of Governors Buruburu Secondary School [2019] KEELC 3 (KLR)", Case Analysis (2019). Nairobi ELC Civil Appeal Number 36 of 2017 (formerly Nairobi HCCA No 690 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3/eng@2019-02-26

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