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ELCPartially AllowedELC No. 10 of 2011· [2019] KEELC 2220 (KLR)

Jonathan Bwire Ojiambo v Rosemary Auma Abangi & another [2019] KEELC 2220 (KLR)

High Court of Kenya (Environment and Land Court)
30 July 2019
AKA. K. Kaniaru
3,060 words in judgment
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The bottom line

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The Busia High Court cancelled an eviction order because it did not genuinely reflect what the Court of Appeal had decided, and told the plaintiff to obtain a proper order first.

What this practically means

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Executive summary

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The Defendants/Applicants (Rosemary Auma Abangi and Herbert Oduori Okumu) moved the court by notice of motion dated 21/6/2016 seeking review of an eviction order issued on 3/6/2016 by the Deputy Registrar, contending that no such order subsisted in the judgment or record, that their suit had been dismissed, and that the order was unprocedurally procured from the Deputy Registrar in a file without such orders. The Plaintiff/Respondent (Jonathan Bwire Ojiambo) opposed, arguing the application was an abuse of process, an impermissible attack on a Court of Appeal order, defective since review under Section 80 of the Civil Procedure Act applies to judgments, and that any review lay in the Court of Appeal. The court first found the stay prayer spent, as it was a temporary exparte prayer not meant to survive determination. On review, the court held that the Court of Appeal judgment ordered the Defendants to vacate, not eviction, and that a valid order dated 17/11/2015 had been extracted from the Court of Appeal's Deputy Registrar. The challenged eviction order was an inference, wrongly captioned as arising from this dismissed suit. Section 4 of the Appellate Jurisdiction Act permits enforcement of Court of Appeal judgments as if High Court judgments but does not permit manufacturing orders in a lower court. An order wrongly formulated in a lower court file is reviewable in that court, and Order 45's 'any other sufficient reason' ground was met. The court allowed the review, rejected the eviction order, directed the Plaintiff to bring a proper order from the Court of Appeal for enforcement, and ordered each side to bear its own costs.

Key legal issues

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01

Whether the eviction order dated 3/6/2016 was validly issued

Holding

The order was invalid: it was not expressly derived from the Court of Appeal judgment (which ordered vacation, not eviction), and was wrongly captioned as an order of the High Court in a suit that had been dismissed

Reasoning

The court re-read the Court of Appeal judgment and found it ordered the defendants to vacate the land, not eviction. The plaintiff had earlier correctly extracted an order dated 17/11/2015 from the Deputy Registrar of the Court of Appeal. The challenged order was by inference and wrongly headed as arising from ELC No. 10/2011, creating the false impression that the plaintiff succeeded in a dismissed suit.

p. 3
02

Whether the eviction order was amenable to review by the High Court

Holding

Yes. Since the order was issued in this court and is the wrong kind of order, it is amenable to review here under Order 45, including for 'any other sufficient reason'

Reasoning

The court rejected the plaintiff's argument that review lies only in the Court of Appeal. Section 4 of the Appellate Jurisdiction Act does not permit procuring orders in a lower court. An order wrongly formulated in the lower court file is reviewable in that court, and Order 45's 'any other sufficient reason' ground was satisfied.

p. 4
03

Whether stay of execution should be considered

Holding

The stay prayer was spent, having been a temporary exparte prayer not meant to survive the hearing and determination of the application

Reasoning

The prayer was expressly temporary and operative only if the application had not been heard and determined. Since the application proceeded by written submissions in lieu of oral hearing and this ruling is the determination, both counsel erred in submitting on stay at this stage.

p. 3

Legal principles established

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  • Section 4 of the Appellate Jurisdiction Act empowers enforcing courts to execute Court of Appeal judgments as their own, but does not entitle a party to manufacture orders in a lower court purporting them to be Court of Appeal orders
  • A decree or order must be expressly derivable from the judgment; it cannot be by inference
  • An order wrongly formulated in a lower court file is amenable to review in that court, including for 'any other sufficient reason' under Order 45

Court orders

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  1. 1.The application for review is allowed
  2. 2.The eviction order issued on 3/6/2016 is rejected
  3. 3.Each side to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1, 1A, 1B, 3, 3A, 63(e), 80
  • Civil Procedure RulesOrder 51 Rules 1, 3, 4, 10(1)(2); Order 45 Rules 1, 2(2); Order 22 Rule 22(1)
  • Appellate Jurisdiction Act (Cap 9)Section 4
  • Constitution of Kenya, 2010Article 165(6)

Cases cited (2)

  • ALVIN KAMANDE NJENJA Vs GATHERU
    [2016] eKLR
  • The Owners of Motor Vessel "Lillians" Vs CALTEX OIL KENYA LTD
    (1989) KLRI
On appeal from
Court of Appeal, Kisumu
Civil Appeal No. 5 of 2015
Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act (Cap 21); Order 51 Rules 1, 3, 4, 10(1)(2) and Order 45 Rules 1, 2(2) 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, "Jonathan Bwire Ojiambo v Rosemary Auma Abangi & another [2019] KEELC 2220 (KLR)", Case Analysis (2019). ELC No. 10 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2220/eng@2019-07-30

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