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ELCAllowedKitale ELC (not stated in judgment; motion dated 14/1/2020 in suit concerning Kitale/Municipality Block 16/36 and 16/14)· [2020] KEELC 2198 (KLR)

Wilfred Keli Ndolo v Jesca Gatakaa Amboka & another [2020] KEELC 2198 (KLR)

Environment and Land Court
30 April 2020
2,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed an auctioneer to forcibly reopen a blocked access road and ordered police to assist, ruling that court judgments must be obeyed, not obstructed.

What this practically means

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Executive summary

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By notice of motion dated 14/1/2020, the plaintiff sought leave for an auctioneer, Kennedy Kwetu Shikuku T/A Eshikhoni Auctioneers, to open the 6-metre road of access serving plots subdivided from Kitale/Municipality Block 16/36 and Block 16/14, in compliance with a judgment delivered on 30/9/2019, together with police security during execution and costs. The defendants opposed, arguing the application was not urgent, that third parties using the road were not party to the suit, that the barriers had already been removed by the plaintiff's agents, and that the application should have gone to the Deputy Registrar under Order 49 of the Civil Procedure Rules, relying on Julius Mwirigi Manyara v Alexander Kithure. The court, Mwangi Njoroge J, framed three issues. It held the judgment was final, peremptory, unstayed and unsuccessfully appealed; the defendants' procedural objection was technical and had to yield to substantive justice under Article 159(2)(d), applying Moses Mwicigi. It distinguished its own decision in Robella Betty Ayode Omaido, where strict compliance with execution procedure was mandatory because the judgment debtor owned the attached goods, whereas here the defendants held no private interest in the public road. The court noted the road had been reopened and re-blocked, and held the court functus officio save for execution matters. It allowed the application in terms of prayers (2), (3) and (4), ordered police security, and condemned the defendants to costs.

Key legal issues

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01

Whether leave should be granted to the auctioneer to reopen the road of access in compliance with the judgment of 30/9/2019

Holding

Leave granted; the defendants have no cogent defence, the judgment is unstayed and unappealed, and their reliance on procedure over a public road in which they hold no title is mischief.

Reasoning

The court found a valid, unstayed judgment in peremptory terms existed. The defendants' objection was merely technical (wrong procedure before the court instead of the Deputy Registrar). Applying Article 159(2)(d) and distinguishing the Robella case on execution procedure (where the judgment debtor owned the goods), the court held that strict procedure would defeat justice where the defendants hold no title to the public road. Non-compliance had prompted the application; prayer (1) was well deserved.

p. 3
02

Whether police security should be provided to the auctioneer during execution

Holding

Yes; security is a necessity given the obstreperous conduct of the defendants.

Reasoning

Given the defendants' obstruction - barriers removed on 8/1/2020 were returned later the same evening - the court found the presence of security apparatus on the ground during reopening of the road to be a necessity and allowed prayer (3).

p. 3
03

Who should bear the costs of the application

Holding

The defendants, for failing to comply with the judgment and prompting the application.

Reasoning

The court attributed blame to the defendants for refusing to comply with a final, peremptory judgment, which necessitated the motion. They were condemned to costs of the application.

p. 3

Legal principles established

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  • Substantive justice must be upheld above procedural technicalities; no person has a vested interest in procedure (Article 159(2)(d)).
  • Final court decrees in peremptory terms must be obeyed; a judgment debtor cannot rely on procedural objections to defeat compliance with a decree.
  • Once a court has delivered final judgment it is functus officio save in respect of matters of execution.

Court orders

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  1. 1.Leave granted to the auctioneer (Kennedy Kwetu Shikuku T/A Eshikhoni Auctioneers) to open the 6 metres wide road of access serving the plots subdivided from Title No. Kitale/Municipality Block 16/36 and Kitale Municipality Block 16/14, by removing the iron sheet barriers and building materials placed on the said road, in compliance with the judgment of 30/9/2019
  2. 2.The Officer Commanding Kitale Police Station to provide security to Kennedy Kwetu Shikuku T/A Eshikhoni Auctioneers while executing the task
  3. 3.Costs of the application and execution of the decree to be borne by the defendants/judgment debtors

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 22 rule 7(2)(j)(v); Order 22 rules 28 and 75; Order 49 (Order 49(b)(x))
  • Constitution of Kenya, 2010Article 159(2)(d); Article 40(2)(a)
  • Auctioneers Rules 1997Section 12(1)(c) (as quoted in Robella case)

Cases cited (5)

  • Julius Mwirigi Manyara -vs- Alexander Kithure
    [2014] eKLR
  • Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others
    [2016] eKLR
  • Robella Betty Ayode Omaido v Eliphineas Jackson Ekim Omaido, Eshikhoni Auctioneers & 2 others
    [2019] eKLR
  • Jeremiah Matoke Vs Kenya Commercial Bank and Another, Kitale ELC No. 127 of 2017
  • Simon Nganga Njoroge Vs Daniel Kinyua Mwangi, Nakuru HCCC No 12 of 2010
Jurisdiction invoked
Sections 1A and 1B of the Civil Procedure Act as read with Order 22 rule 7(2)(j)(v) of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Wilfred Keli Ndolo v Jesca Gatakaa Amboka & another [2020] KEELC 2198 (KLR)", Case Analysis (2020). Kitale ELC (not stated in judgment; motion dated 14/1/2020 in suit concerning Kitale/Municipality Block 16/36 and 16/14). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2198/eng@2020-04-30

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