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ELCPartially AllowedEnvironment and Land Appeal 41 of 2019· [2023] KEELC 19997 (KLR)

Tallam & 4 others v Kibingor

Environment and Land Court
26 September 2023
JOJ.M Onyango
2,408 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside orders that punished people who were never parties to the case and were too vague to enforce.

What this practically means

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Executive summary

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This first appeal in the Environment and Land Court at Eldoret, decided by J.M Onyango, J, challenged a ruling of Hon. J. Tamar PM delivered on 16th October 2019 in Eldama Ravine RMC Land Dispute No. 2 of 2008. The underlying dispute arose from a 2008 Eldama Ravine Land Disputes Tribunal award in which the Respondent, Elkana Kibingor, claimed an interest in land and a business with the 1st Appellant and his brothers. The award was adopted as a judgment of the magistrate's court on 27th July 2008, ordering that Kibingor be included in the ownership of the company, reinstated, and that shareholders appoint officials and an auditor. In 2019 the Respondent sought a forensic audit, certification of amounts due, dissolution of the business and distribution of assets. The magistrate allowed the application, ordering registration of the Respondent as joint proprietor of Plot L.R No. 498/121, an audit of income, and payment of his share. On appeal, the ELC identified three issues: whether orders could issue against the 2nd to 5th Appellants who were not parties to the tribunal; whether the orders sought were at variance with the award; and whether the orders were enforceable. The court held that witnesses cannot have judgments enforced against them, that a forensic audit and dissolution were at variance with the award, that the orders were vague and unenforceable absent a property description, and that enforcement was premature without an extracted decree. The appeal was allowed, the magistrate's orders set aside, and costs awarded to the Appellants.

Key legal issues

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01

Enforcement against non-parties

Holding

Orders cannot be issued against persons who were not parties to the tribunal proceedings

Reasoning

Natural justice requires no one be condemned unheard. The 2nd to 5th Appellants were only witnesses in the tribunal case; the magistrate erred in issuing orders against them. The Florence Nyaboke authority relied on by the Respondent was distinguished as it did not involve enforcement against non-parties.

p. 4
02

Variance between application and decree

Holding

The application sought a forensic audit, dissolution and distribution of assets, which was at variance with the tribunal award

Reasoning

The tribunal ordered reinstatement into the company and an ordinary audit; the application sought dissolution, distribution and a forensic audit, which is different in nature. A court has no jurisdiction to issue a decree at variance with the judgment.

03

Enforceability of orders

Holding

The orders were unenforceable for vagueness and absence of property description

Reasoning

The parcel number was never mentioned in the tribunal proceedings nor was a title produced; without the title number and size of land the registration order could not be enforced. The court also assumed existence of a company and bank account without evidence. Uncertain and vague orders are unenforceable.

p. 5
04

Extraction of decree

Holding

Enforcement was irregular and premature without an extracted decree

Reasoning

After adoption of the award as judgment, the Respondent did not extract a decree as required by Order 21 Rule 7, which requires the decree to agree with the judgment and specify the relief granted. Enforcement without extraction was therefore irregular and premature.

p. 6

Legal principles established

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  • A decree cannot be enforced against persons who were not parties to the proceedings before the tribunal
  • A court cannot issue a decree at variance with the judgment, per Order 20 Rule 6 (now Order 21 Rule 3) of the Civil Procedure Rules
  • A decree for immovable property must contain a description sufficient to identify the property
  • Enforcement requires prior extraction of a decree as required by Order 21 Rule 7

Court orders

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  1. 1.The appeal is allowed
  2. 2.The orders issued by the Magistrate's Court on 16th October, 2019 are set aside
  3. 3.The Respondent shall bear the costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 20 Rule 6 (currently Order 21 Rule 3)
  • Civil Procedure RulesOrder 2 Rule 10
  • Civil Procedure RulesOrder 21 Rule 7
  • Civil Procedure ActSection 99

Cases cited (7)

  • Julius Kigen Kibiego v Angeline Korir & another
    (2012) eKLR

    An order, even by consent, cannot bind an individual who is not a party to the suit

  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 Others
    (2014) eKLR

    Requirement to challenge a tribunal award by appeal or judicial review; distinguished by the court

  • Peter Wafula Welimo (suing as the legal representative of the estate of Welimo Mukati v Mukhwana Walucho Kituyi
    (2020) eKLR

    Court declined to order relief not provided for in the decree arising from a tribunal award

  • Ignatius Ndirangu v Njugura J Kuria
    (2009) eKLR

    Court has no jurisdiction to issue a decree at variance with the judgment

  • Eric Kyalo v Wiper Democratic Party Movement Kenya & another
    (2017) eKLR

    A judicial order ought to be precise and unequivocal

  • Timothy Mukuru Githungu v Wendy Kamwende Mukuru
    (2003) eKLR

    Uncertain and vague orders are unenforceable

  • Otieno Ragot & Co Advocates v National Bank of Kenya Ltd
    (2020) eKLR

    The court has no power to grant orders that were not prayed for

On appeal from
Eldama Ravine Principal Magistrate's Court
RMC Land Dispute No. 2 of 2008
Jurisdiction invoked
First appeal to the Environment and Land Court against the ruling of the Magistrate's Court

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, "Tallam & 4 others v Kibingor", Case Analysis (2023). Environment and Land Appeal 41 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19997/eng@2023-09-26

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