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ELCDismissedOriginating Summons dated 28th June 1994 (Bungoma)· [2020] KEELC 1317 (KLR)

Wellington Wanyonyi & another v Christopher Nabangala [2020] KEELC 1317 (KLR)

High Court of Kenya
24 September 2020
BOBoaz N. Olao
1,761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st and 2nd plaintiffs had sued the defendant by Originating Summons dated 28th June 1994 claiming land parcel NDIVISI/MUCHI/1574 by adverse possession. By a judgment crafted by A. Omollo J on 27th February 2015 and delivered by S. Mukunya J on 19th March 2015, the suit was dismissed with costs, the court holding that the claim was unproved and that the 1st plaintiff's attempt, at trial, to claim another parcel (East Bukusu/West Sang'alo/554) was not in the pleadings. No appeal was filed. Nevertheless, a decree issued on 27th May 2015 purporting to declare the plaintiffs legal owners of parcel 554 and to grant a permanent injunction over it. Relying on that decree, the 1st plaintiff filed a Notice of Motion dated 16th July 2020 seeking orders revoking titles to subdivisions 6922-6930 and registering parcel 554 in the plaintiffs' names. The application was unopposed, the defendant having filed no response. Boaz N. Olao J dismissed it. First, the decree was a nullity for contravening Order 21 Rule 7, as it did not agree with the judgment, and a nullity cannot found further orders (Macfoy v United Africa Co Ltd). Second, parcels 6922-6930 were never the subject of the suit. Third, final relief revoking registered titles could not be granted on an interlocutory application without hearing the affected proprietors, whose rights under Article 40 would be violated. Since final judgment had been delivered and no appeal was pending, nothing remained on which interlocutory orders could issue; the application was incompetent and an abuse of process. The decree of 27th May 2015 was declared null and void and expunged, with no orders as to costs.

Key legal issues

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01

Validity of the decree of 27th May 2015

Holding

The decree was a nullity because it did not agree with the judgment, which dismissed the suit

Reasoning

Omollo J had dismissed the plaintiffs' claim and held the 1st plaintiff had not proved adverse possession. The decree instead declared the plaintiffs legal owners of East Bukusu/West Sang'alo/554 and issued a permanent injunction, contradicting the judgment. Order 21 Rule 7 requires the decree to agree with the judgment, so the decree was contravened the law and was declared null and void and expunged.

p. 2
02

Whether interlocutory orders could be granted after final judgment

Holding

No; no interlocutory remedies can be granted where the suit has been heard and final judgment delivered and no appeal is pending

Reasoning

The Notice of Motion invoked Order 40 and Section 63, which donate interlocutory powers, and sought orders 'pending hearing and determination'. Since final judgment was delivered on 19th March 2015, no appeal was preferred and nothing remained pending, the application was incompetent and an abuse of process.

p. 3
03

Whether orders could issue over land not pleaded

Holding

Parties cannot seek orders over parcels not the subject of the suit, and the 1st plaintiff's claim over East Bukusu/West Sang'alo/554 was already rejected

Reasoning

The Originating Summons concerned NDIVISI/MUCHI/1574, not parcels 6922-6930. Further, Omollo J had rejected the 1st plaintiff's attempt to claim parcel 554 as it was not in the pleadings. The claim over the subdivided parcels was therefore without foundation.

p. 3

Legal principles established

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  • A decree must agree with the judgment; a decree that does not is a nullity
  • A nullity cannot found further relief
  • Major relief should not be granted at an interlocutory stage without hearing affected parties

Court orders

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  1. 1.The application is dismissed.
  2. 2.The Decree dated 27th May 2015 is declared null and void and is hereby expunged from the record herein.
  3. 3.No orders as to costs.

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 63(e)
  • Civil Procedure RulesOrder 21 Rule 7(1)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(a)
  • Constitution of Kenya, 2010Article 40

Cases cited (2)

  • MACFOY .V. UNITED AFRICA CO LTD
    1961 3 ALL.E. R 1169
  • VIVO ENERGY KENYA LTD .V. MALOBA PETROL STATION LIMITED & OTHERS
    2015 eKLR
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act; Order 40 and Order 51 of the Civil Procedure Rules; Article 159(2)(a) of the Constitution (invoked by the applicant)

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, "Wellington Wanyonyi & another v Christopher Nabangala [2020] KEELC 1317 (KLR)", Case Analysis (2020). Originating Summons dated 28th June 1994 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1317/eng@2020-09-24

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