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ELCDismissedELC Case No. 384 of 2012 (application dated 20th September 2018)· [2019] KEELC 3925 (KLR)

Allan George Njogu v National Bank of Kenya Limited [2019] KEELC 3925 (KLR)

Environment and Land Court
27 March 2019
MOM.A. ODENY
3,062 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to supervise how a Court of Appeal judgment is executed, dismissing the borrower's attempt to block National Bank's recovery of Kshs 5 million.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, J of the Environment and Land Court at Eldoret, delivered on 27th March 2019, determines a notice of motion dated 20th September 2018 by the plaintiff, Allan George Njogu Residences Limited, invoking section 34 of the Civil Procedure Act. The plaintiff sought determinations on five questions relating to execution of the decree arising from the Court of Appeal's judgment of 26th July 2017 in Eldoret Civil Appeal No. 290 of 2013, which set aside the High Court's judgment of 16th April 2013 and ordered repayment of Kshs. 5,000,000 with interest. The plaintiff contended that the defendant could not execute without a duly extracted decree under Order 21 rule 8, that the applicable interest was 6% per annum under section 26(2), that the defendant had not settled the order under rule 34 of the Court of Appeal Rules, that a notice to show cause was required under Order 22 rule 18, and that restitution under section 91 was a prerequisite to execution. The defendant opposed, asserting a validly extracted decree of 26th October 2018, an interest rate of 12% court rates, and prematurity of the notice-to-show-cause issue. The court held that the questions raised did not lie before it, that the defendant had extracted a valid order as required, that the interest question was answered by the express terms of the Court of Appeal order, and that the court could not constitutionally or legislatively countermand or supervise the Court of Appeal. Finding the application to be an abuse of the court process, the court dismissed it with costs.

Key legal issues

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01

Jurisdiction to determine questions relating to execution of a Court of Appeal decree

Holding

The court declined to determine the questions raised, holding that they do not lie in this court and that it cannot supervise the Court of Appeal's extraction of its final order.

Reasoning

The applicant invoked section 34 of the Civil Procedure Act seeking determinations on execution of the decree arising from the Court of Appeal judgment. The court found the judgment of the Court of Appeal was clear, that the defendant had extracted a valid order as required by law, and that the execution process under the Court of Appeal Rules had not yet started. The plaintiff had 'jumped the gun' and the court could not act ultra vires its mandate.

p. 4
02

Validity of the extracted decree and the applicable interest rate

Holding

The court noted that the defendant extracted a valid order of the Court of Appeal on 28th August 2017 as required by law, and that the interest rate is ascertainable from Order No. 3 of the decree itself, without determining the rate.

Reasoning

The court observed that the final order of the Court of Appeal expressly required payment of the decretal sum 'together with interest at Court rates' in terms of the High Court ruling of 28th May 2013, so the interest question did not require a fresh determination. It expressly stated it was not determining the interest rate but emphasising the clarity of the final order.

p. 4

Legal principles established

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  • The High Court (Environment and Land Court) has no constitutional or legislative mandate to countermand or supervise the actions of the Court of Appeal in extracting its final order
  • An application inviting the court to determine questions about execution of a decree of a superior court before execution has commenced is an abuse of the court process

Court orders

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  1. 1.The plaintiff's notice of motion dated 20th September 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Actsection 34
  • Civil Procedure Actsection 26(2)
  • Civil Procedure Actsection 91(1)
  • Civil Procedure Rules, 2010Order 21 rule 8
  • Civil Procedure Rules, 2010Order 22 rule 18
  • Court of Appeal Rules, 2010rule 34 (including rule 34(2))
  • Court of Appeal Rules, 2010rule 33

Cases cited (2)

  • Mini Bakeries (K) Ltd v George Ondieki Nyamanga
    [2014] eKLR
  • National Bank of Kenya Limited v Allan George Njogu Residences Limited
    Eldoret Civil Appeal No. 290 of 2013
Jurisdiction invoked
Section 34 of the Civil Procedure Act, Cap. 21 invoked by the applicant; the court held it had no jurisdiction to countermand or supervise the Court of Appeal

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, "Allan George Njogu v National Bank of Kenya Limited [2019] KEELC 3925 (KLR)", Case Analysis (2019). ELC Case No. 384 of 2012 (application dated 20th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3925/eng@2019-03-27

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