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ELCDismissedNot stated in the judgment· [2020] KEELC 1394 (KLR)

Taidora Tata Ernest v Africanus Okada Omadede [2020] KEELC 1394 (KLR)

High Court of Kenya
17 September 2020
1,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Busia High Court dismissed a landowner's application because he never served the court decree, then banked a cheque for the compensation anyway.

What this practically means

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Executive summary

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The defendant/applicant brought an application dated 17th February 2020 under section 3A of the Civil Procedure Act seeking orders that the Deputy Registrar execute transfer documents for a portion of L.R S.TESO/APOKOR/758 on behalf of the plaintiff/respondent, and that the County Land Registrar dispense with production of the original title deed. The application followed a judgment directing the respondent to pay the applicant Kshs.750,000/= in compensation within six months in lieu of transferring 2¼ acres of the suit land, failing which a transfer would issue. The applicant contended that the six-month period expired on 17th January 2020 without payment. The respondent opposed, deposing through counsel J. V. Juma and herself that she was never served with the decree extracted on 15th August 2019 nor the certificate of taxed costs issued on 14th October 2019, both of which came to her attention only on 5th March 2020, whereupon she immediately issued a cheque for Kshs.750,000/=. The court framed two issues: whether time had lapsed absent service of the decree, and whether the applicant was estopped from demanding transfer after banking the respondent's cheque. Applying Muniafu v Ndwiga and Bamburi Portland Cement Co Ltd v Hussein on section 94 of the Civil Procedure Act, the court held that a party moving to execute bears responsibility for extracting and serving the decree, and the applicant's failure to serve the decree and certificate of costs meant he could not benefit from his own default. Further, by banking the cheque and deducting taxed costs, the applicant was estopped from rejecting the payment. The application was dismissed with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the six-month period for payment of compensation lapsed where the decree was never served

Holding

The applicant, having sought to execute the decree, bore the responsibility of extracting and serving it; the unserved decree and unserved certificate of costs meant the Respondent could not be said to be in default

Reasoning

The court noted the decree extracted on 15/8/2019 and the certificate of taxed costs dated 14/10/2019 were never served on the Respondent, who learned of them only on 5/3/2020 and immediately issued a cheque. Since the applicant invoked the court's assistance to execute, the duty to extract and serve the decree lay on him, and his failure meant time could not properly be held to have lapsed against the Respondent.

p. 2
02

Whether the applicant could execute before taxation without leave under section 94 of the Civil Procedure Act

Holding

The applicant was required to seek leave to execute before taxation and, having failed to serve the decree and certificate of costs, could not benefit from his own default

Reasoning

Relying on Muniafu v Ndwiga and Bamburi Portland Cement Co Ltd v Hussein, the court held that section 94 requires leave to execute a decree before taxation, by notice of motion served inter partes. The applicant never sought such leave; the bill was already taxed when he moved the court, and he had not served the decree or certificate of costs, so he could not profit from his own default.

p. 2
03

Whether the applicant was estopped from rejecting the compensation after banking the Respondent's cheque

Holding

By banking the cheque and deducting taxed costs, the applicant estopped himself from rejecting the balance as compensation

Reasoning

The applicant's advocate received the Respondent's cheque for Kshs.750,000/= after service on 5/3/2020, banked it, deducted taxed costs of Kshs.180,235, and returned a cheque for the balance. The court held that if the applicant believed the Respondent was in default he should not have received part-payment before determination of the application; accepting part-payment estopped him from rejecting the rest.

p. 2

Legal principles established

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  • Under section 94 of the Civil Procedure Act, leave of the High Court must be obtained before executing a decree before taxation of costs, and such leave must be sought by notice of motion served on the other party
  • A party who receives part-payment by banking a cheque issued in satisfaction of a decree cannot later reject the remainder and is estopped from doing so
  • A party who seeks execution of a decree bears the responsibility of extracting and serving the decree on the opposite party

Court orders

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  1. 1.The application dated 17th February 2020 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 94

Cases cited (2)

  • Muniafu Vs Ndwiga
    (1990) LLR 5529
  • Bamburi Portland Cement Company Limited Vs Hussein
    (1995) CAK
Jurisdiction invoked
Section 3A 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, "Taidora Tata Ernest v Africanus Okada Omadede [2020] KEELC 1394 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1394/eng@2020-09-17

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