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ELCDismissed· [2022] KEELC 1771 (KLR)

Wanyonyi Chekerie v John Masai & another [2022] KEELC 1771 (KLR)

Environment and Land Court of Kenya
27 January 2022
6,004 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to reopen a concluded case, ruling that paying a decree without appealing locks the judgment in place.

What this practically means

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Executive summary

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The Applicant, the judgment debtor in a suit whose application dated 14/08/2019 to set aside judgment was dismissed on 3/3/2020 for failure to file submissions, brought a Notice of Motion dated 1/07/2021 seeking to vacate that dismissal, reinstate the application, be allowed to file a further affidavit, compel the Respondents (the decree holder and the auctioneer) to account for monies received and deposit them in Court, and obtain costs. He alleged he was unaware of the dismissal until his arrest in execution on 24/06/2021, that he had paid Kshs. 140,000/= via M-pesa plus attached cattle valued at Kshs. 200,000/= (total Kshs. 340,000/=) in full satisfaction, that the auctioneer's costs were unagreed and untaxed, and that the sale was irregular. The 1st Respondent and the auctioneer opposed, asserting the Applicant was indolent, still indebted (auctioneer's fees of Kshs. 140,286/= outstanding; sale proceeds only Kshs. 49,000/=), and that the Applicant removed good animals before attachment. The court framed four issues and dismissed the application in its entirety. It held that by paying towards the decree without challenging the orders the Applicant acquiesced and perfected the decree, rendering the Court functus officio; that the 3/3/2020 dismissal was on merit, so the remedy was appeal, not review, and no Section 80/Order 45 Rule 1 ground was established; that the further-affidavit prayer was an afterthought; and that the auctioneer had rendered an itemized account, with the Applicant disqualified by untruths and by removing proclaimed property contrary to Rule 14 of the Auctioneers Rules. The auctioneer was directed to file and tax his bill inter partes. Costs were awarded to the Respondents, the Applicant bearing the costs of the application.

Key legal issues

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01

Whether the Applicant satisfied the requirements for vacating and setting aside the order of 3/3/2020

Holding

No. The Applicant's payments towards the decree without challenge amounted to acquiescence and perfection of the decree, rendering the court functus officio on the merits; the earlier application was dismissed on merit after consideration, so the remedy was appeal, not review, and no review ground under Section 80/Order 45 Rule 1 was established.

Reasoning

The court found the Applicant paid sums under the decree without questioning the orders, informed he would not be pursued further, and only sought to challenge them after arrest in June 2021. Having neither appealed nor sought review promptly, he could not reopen the matter. The 3/3/2020 order dismissed the earlier application on merit for non-filing of submissions after full consideration, so reinstatement was not available; Article 159(2) could not cure the failure to appeal.

p. 3
02

Whether the Applicant should be allowed to file a further Affidavit in support of the application dated 14/08/2019

Holding

No. Since the orders of 03/03/2020 were not vacated, the underlying application is not open; the request is an afterthought and mischaracterizes the default, which was failure to file submissions.

Reasoning

The court held this issue depended entirely on the first: the dismissal order remained intact, so nothing could be filed in support of the reinstated application. Further, the record showed the Applicant never sought leave to file a further affidavit at the relevant time; his failure was non-filing of submissions.

p. 5
03

Whether the Respondents should give account of monies received and deposit them in Court

Holding

No. The auctioneer had already filed an itemized account of the sale proceeds; the Applicant was found to have lied and to have removed proclaimed property contrary to Rule 14 of the Auctioneers Rules, 1997, soiling his hands; instead the auctioneer was directed to file and tax his bill of costs inter partes.

Reasoning

The court found discrepancies and falsehoods in the Applicant's affidavits, including a false claim of a backdated proclamation and inconsistent figures on amounts paid. Section 22 of the Auctioneers Act did not apply to attachment sales, which are governed by Section 21 and the Auctioneers Rules; Rule 18(4) required an itemized account, which the auctioneer had filed. The removal of good animals before attachment defeated justice.

p. 6
04

Who should bear the costs of the Application

Holding

The Applicant, since costs follow the event and the application failed in totality.

Reasoning

Having found the application unmerited, the court applied the principle that costs follow the event, while directing the auctioneer to file and tax his bill in the interest of justice.

p. 6

Legal principles established

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  • A court is functus officio once proceedings are fully concluded and the judgment or order has been perfected, save for incidental or supplemental matters.
  • The functus officio principle is grounded on public policy favouring finality of proceedings and prevents a court from reopening a case after final judgment absent statutory authority.
  • Functus officio bars merit-based re-engagement with a decided case but not incidental engagement.
  • A decision-maker's final decision cannot be reviewed or varied by the decision maker itself, subject to appeal.
  • Review is not an alternative or substitute for appeal; a party who could have appealed cannot squander that right and resort to review.
  • Order 45 Rule 1 must be read as a whole: an aggrieved party from a decree from which appeal is allowed but not preferred may seek review only on the statutory grounds, such as discovery of new and important matter.
  • Removal of proclaimed property is an offence and amounts to interfering with the court process to defeat justice, attracting the clean hands doctrine.
  • An auctioneer selling attached movable property must give an itemized account of monies received and paid under Rule 18(4) of the Auctioneers Rules, 1997.

Court orders

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  1. 1.The Notice of Motion dated 1/07/2021 is dismissed in its entirety.
  2. 2.The Auctioneer (3rd Respondent) is directed to file and tax (inter partes) his bill of costs on his fees resulting from the attachment, with the Applicant to pay the taxed sum or have it levied in further execution together with any decretal sum still owing, until payment in full.
  3. 3.The Applicant shall bear the costs of the Application.

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3, 3A, 63(e), 80, 99
  • Civil Procedure RulesOrder 22 Rule 25; Order 45 Rules 1 and 2; Order 51 Rule 1
  • Constitution of Kenya, 2010Articles 159, 159(2)
  • Auctioneers ActSections 21, 22, 30
  • Auctioneers Rules, 1997Rules 13, 14, 18(4)

Cases cited (8)

  • Isaac Ngugi v Overseas Courier Services (K) Ltd
    1998 eKLR
  • Regina Waithira Mwangi Gitau v Bonface Nthege
    [2015] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Dickson Muricho Muriuki v Timothy Kagondu Muruiki & 6 others
    [2013] eKLR (Civil Application Nyr 21 of 2013 (UR 5/2013)
  • Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited)
    [2014] eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Dhanji Jadra Ramji v Commissioner of Prisons & Another
    Nakuru HCCC No. 275 of 1998
  • re Estate of Japhet Avugwi Luseno (Deceased)
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 22 Rule 25, Order 45 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya, 2010

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, "Wanyonyi Chekerie v John Masai & another [2022] KEELC 1771 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1771/eng@2022-01-27

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