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ELCPartially AllowedELC Appeal arising from CMCC No 368 of 2017, Murang'a· [2020] KEELC 2687 (KLR)

Catherine Nyambura Njuguna & 2 others v Wilson Kihumba Githinji [2020] KEELC 2687 (KLR)

Environment and Land Court
12 May 2020
JKJ G Kemei
3,356 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a fresh suit challenging an auction sale, ruling that disputes about executing a court decree belong before the executing court only.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court against a ruling of the learned Principal Magistrate delivered on 8/2/19 in CMCC No 368 of 2017, Murang'a, dismissing the Appellants' Notice of Motion dated 28/12/17. The motion sought joinder of the Appellants (granted by consent on 30/1/18), stay of execution of prohibitory orders, review and setting aside of temporary injunction and prohibition orders issued on 20/12/2017, and striking out of the Respondent's plaint. The background was a decree in CMCC No 451 of 2012, Thika, in which Mwangaza Finance Trust Limited recovered a loan debt from the Respondent, leading to a public auction of the suit land in 2013 at which the Appellants' chairman bid successfully, followed by a vesting order in 2015. The Respondent then filed a fresh suit seeking to declare the auction fraudulent and void for breach of section 8 of the Land Control Act. Justice J G Kemei held that the decree and vesting orders remained in force, and that the fresh suit, which challenged the execution of that decree, contravened section 34 of the Civil Procedure Act, which is expressed in mandatory terms. The suit amounted to a back-door appeal against a court of concurrent jurisdiction and was an abuse of process. The appeal was allowed with costs to the Appellants; the Respondent's suit and application of 13/12/2017 were dismissed with costs, and the interlocutory orders of 20/12/2017 were set aside.

Key legal issues

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01

Whether the Respondent's suit offended section 34 of the Civil Procedure Act

Holding

Yes - the suit challenging the auction sale in execution of the decree in CMCC No 451 of 2012 was incompetent, as section 34 is mandatory and such questions must be raised before the executing court

Reasoning

The court found the decree and vesting orders in CMCC No 451 of 2012 remained in force, unappealed and not set aside. The fresh suit sought to impugn the execution of that decree, which section 34 reserves exclusively to the executing court. Filing afresh after failing to set aside the judgment was a second bite at the cherry and effectively an appeal against a court of concurrent jurisdiction.

p. 4
02

Whether CMCC No 368 of 2017 was an abuse of the process of the Court

Holding

Yes - the suit was incompetent and an abuse of process, warranting striking out, and the Respondent did not oppose that ground

Reasoning

The Respondent had failed to set aside the judgment in the original suit and mounted a fresh suit to challenge the sale, creating an absurdity by inviting the subordinate court to sit on appeal over its own decisions. The court determined the appeal on this ground alone, dispensing with the review questions.

p. 4
03

Whether the Learned Magistrate erred in dismissing the Appellants' application

Holding

Yes - the Magistrate fell into error in dismissing the application, and the appeal was allowed

Reasoning

Having found the underlying suit incompetent and an abuse of process, the court held the Magistrate erred in dismissing the application seeking joinder, stay, review and striking out. The consequence was allowing the appeal, striking out the suit, and setting aside the interim orders of 20/12/2017.

p. 4

Legal principles established

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  • All questions relating to the execution, discharge or satisfaction of a decree must be determined by the Court executing the decree and not by a separate suit
  • A fresh suit challenging the execution of a subsisting decree amounts to an appeal through the back door and an abuse of the process of the Court

Court orders

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  1. 1.The Plaintiff's suit in CMCC No 368 of 2017 is dismissed with costs to the Defendants
  2. 2.The Respondent's application dated 13/12/2017 is dismissed with costs
  3. 3.The interlocutory orders issued on 20/12/2017 are set aside
  4. 4.The Appeal is allowed with costs to the Appellants

Authorities

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Legislation

  • Civil Procedure Actsection 34
  • Land Control Actsection 8

Cases cited (2)

  • Joseph Mwangi Theuri & 37 others Vs David Gitonga Githinji
    (2014)
  • Nazir Jimnah Vs Asmahan Peterson & 2 Others
    (2012)
On appeal from
Principal Magistrate's Court (Murang'a, CMCC No 368 of 2017)
CMCC No 368 of 2017
Jurisdiction invoked
First appeal against ruling of the Principal Magistrate in CMCC No 368 of 2017 (statutory first appeal; specific provision not stated)

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, "Catherine Nyambura Njuguna & 2 others v Wilson Kihumba Githinji [2020] KEELC 2687 (KLR)", Case Analysis (2020). ELC Appeal arising from CMCC No 368 of 2017, Murang'a. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2687/eng@2020-05-12

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