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ELCDismissedBungoma CMCC No 239 of 2016 (referred to in the judgment variously as CMCC No 139 of 2016) – Notice of Motion dated 11th March 2020· [2020] KEELC 808 (KLR)

Zacharia Otel Wamalwa v Zakayo Wasike [2020] KEELC 808 (KLR)

High Court of Kenya
5 November 2020
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court cannot take over a concluded magistrate court judgment for execution, so unassessed damages left the winner with almost nothing to enforce.

What this practically means

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Executive summary

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The applicant, who had obtained judgment against the respondent before the Bungoma Chief Magistrate's Court on 31st August 2018 in a claim for general damages equivalent to the market value of 12 acres of land, moved the High Court by Notice of Motion dated 11th March 2020 seeking transfer of that file to the High Court for adoption of the judgment and further directions. His position was that the valuation ordered by the trial magistrate had been conducted by Crisca Real Estates at approximately Kshs. 28 million, an amount beyond the trial court's pecuniary jurisdiction. The application was unopposed but Boaz N. Olao J considered it on its merits. The court called for the trial file and noted that the trial magistrate had entered judgment for compensation 'subject to valuation' without any evidence from a land valuer having been tendered, and that no assessment of general damages had been carried out as required by Order 21 Rule 4 of the Civil Procedure Rules. The court held that Section 18(1) of the Civil Procedure Act permits transfer only of suits pending before subordinate courts, not suits already heard and determined, and that there is no statutory provision empowering the High Court to transfer to itself a subordinate court's judgment for execution. Order 46 of the Civil Procedure Rules was also held inapplicable. Even if a transfer were possible, only costs and interest would be executable since no general damages were assessed. The Notice of Motion was accordingly dismissed with no orders as to costs, delivered by electronic mail on 5th November 2020 in line with COVID-19 guidelines.

Key legal issues

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01

Whether the High Court can transfer a concluded subordinate court suit to itself for execution

Holding

No; Section 18(1) CPA applies only to pending proceedings

Reasoning

Section 18(1) empowers the High Court to withdraw or transfer any suit or other proceeding 'pending' in a subordinate court. Once judgment has been delivered, the suit is no longer pending hearing and final determination, so the transfer power is spent. The court also found Order 46 of the Civil Procedure Rules inapplicable and declined to comment on the correctness of the trial judgment as no appeal was before it.

p. 1
02

Whether any executable judgment existed

Holding

Only costs and interest were executable; general damages were never assessed

Reasoning

The trial magistrate awarded compensation 'subject to valuation' without conducting an assessment of general damages as required under Order 21 Rule 4 of the Civil Procedure Rules. Since no quantified damages were awarded, even a transfer would leave the plaintiff able to execute only costs and interest. The application was therefore devoid of merit.

p. 2

Legal principles established

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  • Section 18(1) of the Civil Procedure Act allows the High Court to withdraw or transfer only a suit pending before a subordinate court, not one already heard and determined
  • A judgment awarding damages 'subject to valuation' without assessment yields nothing executable except costs and interest

Court orders

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  1. 1.The Notice of Motion dated 11th March 2020 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 18(1)
  • Civil Procedure RulesOrder 51; Order 21 Rule 4; Order 46
On appeal from
Chief Magistrate's Court, Bungoma
CMCC No 239 of 2016 (also cited as 139 of 2016)
Jurisdiction invoked
Sections 1A, 1B, 3A and 18 of the Civil Procedure Act and Order 51 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, "Zacharia Otel Wamalwa v Zakayo Wasike [2020] KEELC 808 (KLR)", Case Analysis (2020). Bungoma CMCC No 239 of 2016 (referred to in the judgment variously as CMCC No 139 of 2016) – Notice of Motion dated 11th March 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/808/eng@2020-11-05

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