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ELCAllowedELCA Case No. 6 of 2019· [2020] KEELC 1245 (KLR)

Alfred Muyeyeli & another v Jamin Onyiri & another [2020] KEELC 1245 (KLR)

Environment and Land Court
28 September 2020
NMN.A. Matheka
1,217 words in judgment
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The bottom line

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A Kenyan court stopped an 18-year-old land decree from being enforced because the winning party never served the required notice before execution.

What this practically means

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Executive summary

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The appellants, dissatisfied with the ruling of the learned Hon. S.O. Ongeri, appealed to the Environment and Land Court at Kakamega by memorandum filed on 20 March 2019. They contended that the notice of motion dated 26 July 2018 could not amount to a notice to show cause under Order 22 Rule 18 of the Civil Procedure Rules, that the respondents could not lawfully proceed with execution, and that the trial court had failed to consider the legal effect of lifetime gifts under the law of succession. They sought allowance of the appeal with costs. The respondents opposed, submitting that the application sought extension of time to execute a 2000 decree after a prior appeal (High Court Civil Appeal No. 9 of 2000) was dismissed, and that a notice to show cause was properly issued, execution being rightful over LR/South Maragoli/Buyonga/1465. The court applied Order 22 Rule 18(1) and authorities including Grand Creek LLC v Nathan Chesangmoson, Rosslyn Development Limited v Bidco Oil Refineries Limited, and Ngure Kairu v Amin Abdulkadir Mohamed. Holding that judgment was entered in 2000 and execution was sought only in 2018, the court found that a notice to show cause was required and evidently not served. Execution without following due process under Order 22 was imprudent. The appeal was allowed with costs to the appellants.

Key legal issues

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01

Compliance with Order 22 Rule 18(1) before execution of a decree over one year old

Holding

The appeal was merited because no notice to show cause was served before execution was allowed; the court below erred in treating the notice of motion as such a notice.

Reasoning

Judgment had been entered in 2000 and the application to execute was dated 26 July 2018, more than one year later. Order 22 Rule 18(1)(a) requires the court executing such a decree to issue a notice to the person against whom execution is applied, requiring him to show cause why the decree should not be executed. The appellants never received such notice, so execution without due process was improper.

p. 3

Legal principles established

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  • Where an application for execution is made more than one year after the date of the decree, the executing court must issue a notice to show cause before execution proceeds.

Court orders

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  1. 1.The appeal is allowed with costs to the appellants

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 18(1)

Cases cited (3)

  • Grand Creek LLC & Another vs. Nathan Chesangmoson
    (2015) eKLR
  • Rosslyn Development Limited vs Bidco Oil Refineries Limited
    (2014) eKLR
  • Ngure Kairu v Amin Abdulkadir Mohamed & another
    (2015) eKLR
On appeal from
Magistrates' Court (Hon. S.O. Ongeri)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ruling (Environment and Land Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Muyeyeli & another v Jamin Onyiri & another [2020] KEELC 1245 (KLR)", Case Analysis (2020). ELCA Case No. 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1245/eng@2020-09-28

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