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ELCDismissedELC case, Nakuru (originating summons filed 24th May 2011)· [2020] KEELC 3921 (KLR)

Joseph Kiprotich Yegon v Tabarno Chepkiyeng [2020] KEELC 3921 (KLR)

Environment and Land Court
29 January 2020
DOD. O. Ohungo
927 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court dismissed a bid to enforce old orders, confirming that court orders can only be enforced in the case where they were made.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo, J of the Environment and Land Court at Nakuru, delivered on 29th January 2020, determines the defendant's Notice of Motion dated 7th February 2019. The applicant sought leave to execute orders allegedly issued by the court on 10th March 2009 and police security from the Officer In Charge of Eldama Ravine Police Station to enable surveyors to implement the court's decision and rulings in Nakuru HC Civil Appeal No. 112 of 2008 and No. 113 of 2011. The plaintiff opposed, contending that he had withdrawn his suit, that no enforceable judgment or order existed in the matter, and that orders made in another tribunal could not be enforced within this suit. The court found the application without merit for three reasons. First, the order of 10th March 2009 was not annexed and could not have existed, since the suit was filed on 24th May 2011, long after the purported date of the order. Second, the annexed rulings in the two appeals were dismissals of applications for stay of execution and an interlocutory injunction respectively, containing nothing capable of enforcement; in any event, enforcement must be sought in the matter in which the order was made. Third, although the plaintiff's Notice of Withdrawal of 10th September 2018 was ineffective under Order 25 Rule 2 of the Civil Procedure Rules - the suit having been set down for hearing and withdrawn without consent or leave - the suit remained alive and this did not assist the applicant. The motion was dismissed with no order as to costs, the parties being connected by family ties.

Key legal issues

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01

Whether the alleged orders of 10th March 2009 could be executed in this suit

Holding

The application failed because the order was neither annexed nor capable of existing, as it predated the filing of the suit

Reasoning

The applicant sought to execute orders allegedly issued on 10th March 2009, yet the suit was filed on 24th May 2011. No copy of the order was annexed, so its existence and scope could not be ascertained, and the applicant did not explain how orders could issue before the suit was filed.

p. 1
02

Whether orders in HC Civil Appeal No. 112 of 2008 and No. 113 of 2011 were enforceable here

Holding

Both rulings dismissed applications (stay of execution and interlocutory injunction) and contained nothing capable of enforcement; enforcement would have to be sought in those matters

Reasoning

The annexed ruling of 29th April 2010 dismissed an application for stay of execution, and the ruling of 18th November 2011 dismissed an application for an interlocutory injunction. Neither outcome produced an order capable of enforcement, and in any case the proper forum for enforcement is the matter in which the order was made.

p. 1
03

Effect of the plaintiff's Notice of Withdrawal filed 10th September 2018

Holding

The Notice of Withdrawal was of no consequence because the suit had been set down for hearing and was withdrawn without written consent or leave of court; the suit remains

Reasoning

Under Order 25 Rule 2 of the Civil Procedure Rules, a suit set down for hearing may only be discontinued by written consent signed by all parties or upon leave of the court. No consent was filed and no leave was sought, so the withdrawal was ineffective and the suit remains on the record.

p. 2

Legal principles established

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  • A suit set down for hearing can only be withdrawn or discontinued by written consent of all parties or upon leave of the court under Order 25 Rule 2 of the Civil Procedure Rules; a Notice of Withdrawal filed without consent or leave is of no consequence
  • Orders made in another suit or tribunal cannot be enforced within a different suit; enforcement must be sought in the matter in which the order was made

Court orders

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  1. 1.The Notice of Motion dated 7th February 2019 is dismissed
  2. 2.No order as to costs, given the family connections between the parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 2
Jurisdiction invoked
Original first-instance jurisdiction over the suit; application brought under Order 25 Rule 2 of the Civil Procedure Rules framework

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, "Joseph Kiprotich Yegon v Tabarno Chepkiyeng [2020] KEELC 3921 (KLR)", Case Analysis (2020). ELC case, Nakuru (originating summons filed 24th May 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3921/eng@2020-01-29

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