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ELCDismissedNot stated in the judgment· [2020] KEELC 348 (KLR)

Francis Hezron Shiaba v Morris Munameza Isiye [2020] KEELC 348 (KLR)

Environment and Land Court
9 December 2020
NMN.A. Matheka
661 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a judgment debtor deposit money late, ruling that missing the court-ordered deadline meant asking to change the judgment itself.

What this practically means

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Executive summary

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This was an application dated 14th September 2020 brought under Section 34(1) of the Civil Procedure Act seeking leave for the plaintiff to deposit the decretal sum of Ksh. 950,000 in court, with costs provided for. The underlying judgment, delivered on 28th April 2020 by the Environment and Land Court at Kakamega (N.A. Matheka, J), had ordered the plaintiff to refund the defendant Ksh. 950,000 within 90 days, and upon refund, the defendant's name was to be cancelled as proprietor of L.R. No. Isukha/Lubao/2952. The plaintiff, stating he was unemployed and could not raise the money within the 90 days, managed to do so only on 20th August 2020. When he inquired whether the defendant's advocates, Mwamu & Co. Advocates, had instructions to receive the money, he was told the defendant had declined. The plaintiff then sought leave to deposit the money in court so as to trigger the cancellation of the defendant's name in the register. The defendant opposed, stating he had appealed and that the application would render the appeal nugatory, and blamed the Covid-19 pandemic for delays in fixing the appeal for hearing. The court, however, held that the plaintiff had failed to abide by the terms of the judgment within the time fixed, and that the application was in effect a request to extend time and vary the judgment, which the court could not grant through a Section 34(1) application. The application was dismissed with costs to the defendant.

Key legal issues

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Whether the court should grant leave to deposit the decretal sum in court where the judgment debtor did not pay within the 90 days ordered

Holding

The application was dismissed. The court held that the plaintiff had failed to comply with the judgment terms and could not use the application to effectively extend the time for compliance.

Reasoning

The judgment of 28th April 2020 ordered the plaintiff to refund Ksh. 950,000 within 90 days, failing which the cancellation of the defendant's name as proprietor of L.R. Isukha/Lubao/2952 would follow. The plaintiff only raised the money on 20th August 2020, outside the 90 days, and the defendant declined to instruct his advocates to receive it. The court viewed the request to deposit the money in court as an indirect application to vary its judgment, which it declined to entertain. The delay was attributed to the plaintiff's own failure, not the court process.

p. 2

Legal principles established

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  • A party who fails to comply with the terms of a judgment within the time fixed cannot invoke Section 34(1) of the Civil Procedure Act to obtain leave to deposit the decretal sum in court, as that would amount to varying the judgment.

Court orders

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  1. 1.The application dated 14th September 2020 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 34(1)
Jurisdiction invoked
Section 34(1) of the Civil Procedure Act

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, "Francis Hezron Shiaba v Morris Munameza Isiye [2020] KEELC 348 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/348/eng@2020-12-09

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