Chome & 9 others v Radhi & 2 others

2. In response to that application, the respondents submitted a reply adavit dated 28th February, 2025. They argued that the appellants were essentially seeking to execute a court order issued on 30th March, 2006, well after the statutory twelve-year limit had expired. Consequently, the respondents urged the trial court to dismiss the appellants' application. 3. The trial court then delivered its ruling on the application on May 15, 2025, agreeing with the respondents’ position and dismissing the appellants' application. The appellant, aggrieved by the decision, then led the current appeal on the grounds enumerated in their Memorandum of Appeal dated May 27, 2025. 4. The Memorandum of Appeal indicates that the appeal is based on the argument that the learned magistrate erred by failing to consider the Superior Court decisions that established the appellant's right to the suit properties, which were issued pursuant to lawful orders in existence. The magistrate also erred in reckoning the application of the limitation period and the statutory exemption in the execution of existing judgments/court orders, neglecting the relevant materials presented and failing to acknowledge pending valid court orders that had not yet been executed. 5. The appeal was canvassed through written submissions. I acknowledge the submissions from learned counsels for the appellants, Mr. Kiponda, and for the respondents, Mr. Kithi, with considerable appreciation, as they contributed signicantly to resolving the issues raised in the appeal. 6. Based on the materials and submissions placed before me, the issues that I deduce fall within the determination of this court and can be succinctly summarized as follows: whether the trial court misdirected itself in its assessment of the time period under the Limitations of Actions Act for enforcement of existing court judgments and orders, and who should bear the costs of this appeal. 7. The timelines in the proceedings show that the parties have been engaged in legal battles for over twenty years, marked by persistent court actions, as will be detailed in this judgment. The process began after several decisions by the District Land Adjudication Settlement Ocer, following the adjudication process under the Land Adjudication Act, Cap 284, Laws of Kenya. It concluded with the ling of a claim before the Bahari Land Disputes Tribunal on May 4, 2005; the Bahari Land Disputes Tribunal (Claim No. 17 of 2004) on August 22, 2005; and the Provincial Land Disputes Appeal Committee Coast (Appeal Case No. 382 of 2005) in April 2009. These rulings eectively invalidated the respondents' titles in favor of some appellants, leading the respondents to appeal to the High Court in Malindi, HCCA No. 28 of 2009. 8. Before the appeal was prosecuted, the Lower Court, on 30th March, 2006, issued an order to the eect that ‘the titles already issued be nullied if the appeal be unsuccessful to comply with the subdivision ordered by the Land Dispute Tribunal.’ The said Appeal, however, was never prosecuted and was dismissed sometime in June 2010 for want of prosecution. As such, the dismissal of the appeal gave the appellants the leeway to proceed with execution as ordered. 9. Mr. Kiponda states that the orders issued on 30th March 2006 still stand and have not been vacated, set aside by a competent court, fullled, or challenged by the respondents in any way. The respondents later led a new suit on the same matter, involving the same parties and subject matter, Malindi ELC No. 54 of 2019: Charles Pasi & 3 others v Gibson Chome & 9 others. This case is reported as Kambi & 3 others v Chome & 9 others [2023] KEELC 494 (KLR), in which they sought injunctive relief over 10 years after abandoning their appeal. The suit was dismissed because a valid court order was still in eect and had not been overturned. 10. Upon receiving the order in ELC No. 54 of 2019, Malindi, in their favor, the appellants vehemently sought to execute the order. Still, the respondent persistently interfered with the process, necessitating https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18632/eng@2025-12-16 2

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the ling of a contempt application dated 8th April 2024 in the same le. That Njoroge J. dismissed the application vide a ruling delivered on 6th February 2025, reported as Kambi & 3 others v Chome & 9 others [2025] KEELC 421 (KLR), citing the existence of valid court orders as held by Odeny J. 11. Mr. Kiponda asserts that the respondents led an appeal from the substantive decision of this court, Odeny J., to the Court of Appeal in Pasi Kambi & Others v Gibson Chome and Others (Laibuta JA). Still, the appeal did not see the light of day. 12. The respondents led an additional lawsuit, ELC No. E097 of 2024, reported as Pasi and Ponda (Suing and legal representatives of the Estate of Charles Pasi Ponda) & 3 others v Kambi & 11 others (Environment & Land Case E097 of 2024) [2025] KEELC 1455 (KLR) (20 March 2025) (Ruling), and a ruling delivered by this court on 20th March 2025. The court dismissed the case, citing principles of res judicata and the existence of a valid court order. The respondents attempted to appeal but subsequently abandoned their appeal. 13. The appellants requested that the trial court issue clear, enforceable orders to carry out the Hon. C. Obulutsa (SRM) Order of 30th March 2006 in MCELC 37 of 2005, Kili. According to the appellants, unexpectedly, on 15th May 2025, Hon. C. Obulutsa decided in favor of the respondents, completely ignoring earlier rulings by the Superior Courts on the same issue, involving the same parties and subject matter. 14. Mr. Kithi argues that since the appeal was dismissed, the appellants failed to carry out the orders from 30th March, 2006. In their application dated 24th February, 2025, led before the trial court, the appellants eectively sought execution orders—disguised as eviction and permanent injunction orders. Meanwhile, the respondents contended that the Limitation of Actions Act barred the appellants from enforcing the 30th March, 2006, orders and from pursuing their application. 15. He further contends that, based on the background provided, the court issued conditional orders on March 30, 2006. These orders would take eect only if the appeal were unsuccessful. In June 2010, when the appeal was dismissed, the orders of the Land Dispute Tribunal remained valid. It then became the appellants' obligation to follow the proper procedures at the Lands Registry to nullify the titles. At the time of the dismissal, no stay of execution was granted, meaning the appellants could still have pursued execution of the 2006 orders if they had chosen to do so, but they did not. As a result, their right to enforce these orders expired around June 2022. By then, the orders were no longer in eect, and the trial court correctly assessed the time within which a judgment or order of a competent court can be executed. 16. He further asserts that the appellants’ contention before the trial court that the respondents curtailed their eorts to execute the orders issued was baseless, given that, even with the existence of all other matters as listed by the appellants, the respondents never enjoyed a stay of execution. The nonexecution, therefore, reected indolence on the part of the appellants, and the trial court was indeed correct in dismissing the appellants' application before it in its entirety. 17. He raises a question that the appellants must answer and substantiate before this Court: whether the orders of 30th March, 2006, were enforceable at the time they submitted their application to the trial court. 18. As this is a rst appeal, I am mindful that, as set out in the decision of Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, this court's duty is to reconsider the evidence, evaluate it, and draw its own conclusions of fact and law. This court will depart from the trial court's ndings only if they were not based on the evidence on record; where the trial court is shown to have acted https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18632/eng@2025-12-16 3

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on wrong principles of law, as held in Jabane v Olenja (1968) KLR 661; or where its discretion was exercised injudiciously, as held in Mbogo & Another v Shah (1968) EA 93. 19. Having thoroughly reviewed the appeal record, the application before the trial court, and the litigation history as reected in the subsequent ELC decisions after the trial court's March 30, 2006 order, as persuasively argued by Mr. Kithi, the matter before the magistrate concerned the enforcement of the trial court's 2006 orders, which were subject to appeal, and the appellants' subsequent abandonment of the appeal in 2010 before the High Court and the dismissal of the same for want of prosecution. The trial court narrowed the issues to whether enforcing those orders after more than 12 years contravened the Limitation of Actions Act, which provides a 12-year limit on enforcing a judgment. After considering various judicial precedents, the trial court concluded that the appellants were timebarred and that the 2006 orders were unenforceable because more than 12 years had elapsed since their issuance. Despite dicta from the Superior Courts, including this court, the 2006 orders had become time-barred and were unenforceable. 20. Section 4 (4) of the Limitation of Actions Act, Cap 22 Laws of Kenya, explicitly states that: “ An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered.” 21. After reviewing the record of appeal, the parties' submissions, and the judicial precedents cited here and relied on by the magistrate, and after considering the magistrate's decision regarding enforcement of the 2006 orders, I concur with the respondents' assertion and the trial court's ndings that, had the appellants wished to execute the orders at any point, they had twelve years to le the appropriate application before the trial court to seek authorization for execution, thereby nullifying the Title Deeds in question. Nevertheless, they failed to act within this timeframe and did not substantiate any eorts toward execution before the lower court. Such eorts should have included evidence of the necessary application to the land registry, accompanied by the orders for the nullication of the titles. As a result, their application did not remedy their inattention, as their right to execute had since expired. 22. The Court of Appeal, in a decision cited by the respondents and with which I concur, in the case of Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR), claried that Section 4(4) of the Limitation of Actions Act pertains to the enforcement of judgments. In that case, the court stated as follows: “ In other words, the appellant wanted to execute the said decree against the respondent out of time. Execution of judgments and/or decrees is governed by section 4(4) of the Limitation of Actions Act, which is in the following terms: “4(4) an action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered.” The judgment which the appellant sought to execute was passed on 26th August, 1996. The judgment should therefore have been executed on or before 27th August, 2008.” 23. Further, the decision cited to me by the respondents in Hudson Moat Mbue v Settlement Fund Trustees & 3 others (unreported), as cited in Koinange Investments and Development Company Limited v Ian Kahiu Ngethe & 3 others [2015] eKLR, observed as follows: “ What I understand the law to be is that once a judgment has been rendered, execution of that judgment must be commenced within the 12-year period otherwise you cannot obtain a judgment and fail to do anything about it and after 12 years have expired seek to execute https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18632/eng@2025-12-16 4

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the same. Section 4(4) of the Limitation of Actions Act will bar you from carrying on with such execution.” 24. Additionally, I agree with the decision relied on by the trial court and cited by the respondent in Rwama Farmers Co-operative Society Limited v Muramati Sacco Society Limited [2021] KEPT 529 (KLR), which in turn relied on the ELC decision in John Mwaniki Mwaura v John Ndonyo Njuguna [2018] KEELC 1631 (KLR). The ELC had this to say: “ The limitation period in respect of judgments is contained in Section 4(4) of the Limitation of Actions Act, Cap 22, Laws of Kenya, which provides as follows: 4(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due. 9. Apart from Section 4 above, Section 7 of the Limitation of Actions Act is also operative. It provides as follows: - 7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person. 10. It can be deduced from Section 4 (4) above that the limitation period for executing judgments is therefore 12 years. The applicant can only benet if there is a provision in law which allows him an extension of time. Part III of the Limitation of Actions Act, which provides for extension of limitation periods has been cited. I have gone through this part of the statute but nowhere does it provide for an extension of a limitation period in relation to judgments. Indeed, counsel for the applicant referred me to no particular provision of Part III as giving this court jurisdiction to extend the time period given for executing judgments. Section 95 of the Civil Procedure Act, only allows the court discretion to extend time for periods which have been prescribed under the said Act. This thus cannot cover periods covered under the Limitation of Actions Act, which is a dierent statute. I do not see how Sections 1A or 1 B of the Civil Procedure Act can assist the applicant. These are general provisions of the law which direct the court to be ecacious and ecient in the discharge of its duties. Order 51 Rule 1 is a general provision of the law directing that applications be led by way of Notice of Motion. Order 50 Rule 6 does give power to the court to extend the time frames given in the rules, directing the periods within which to do certain acts. This cannot extend to periods under the Limitation of Actions Act. Article 159 (2) (d) of the Constitution enjoins the court to do justice without undue regard to procedural technicalities. However, limitation periods cannot be said to be procedural technicalities, for they are provisions of substantive law, and in my view, Article 159 (2) (d) cannot be used to extend limitation periods.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18632/eng@2025-12-16 5

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25. As the respondents correctly asserted, the appellants' submission that the application led with the trial court was also intended to seek an extension of time to execute the orders. As previously argued, the trial court lacked jurisdiction to extend the timelines for executing the orders, rendering the application properly dismissed. 26. As to whether the dicta from the Superior Courts (read the ELC) extended the life of the “valid and existing court orders” issued by the trial court in 2006, I need to quote a passage from this court's decision concerning the matters before the ELC. In Pasi and Ponda (Suing and legal representatives of the Estate of Charles Pasi Ponda) & 3 others v Kambi & 11 others (Environment & Land Case E097 of 2024) [2025] KEELC 1455 (KLR) (20 March 2025) (Ruling), this court reviewed the parties' litigation history regarding the suit properties and observed as follows: “ I have evaluated the submissions raised by the parties and the authorities cited. I will agree with the defendants in this matter that the issues raised in this action are similar to what has been raised in the former actions signicantly in Malindi ELC 54 of 2019, reported as Kambi & 3 others v Chome & 9 others [2023] KEELC 494 (KLR), this Court (Odeny J.) in the judgment delivered on 30th of January 2023 extensively discussed the issues raised in the current matter vis-a-vis other former actions on same parties and similar issues, in dismissing the suit she rightly held: “The Award of the Land Disputes Tribunal which was upheld by the Provincial Land Appeal’s Committee and adopted as a Judgment of the Court has not been set aside. It is still subsisting; therefore, it follows that it is a valid order until it is set aside. 41. The Plaintis ' argument was that the Tribunal did not have the jurisdiction to hear and determine the matter, hence the award was null and void. These are the issues that were supposed to be determined in the Appeal which the Plainti led in the High Court but abandoned. That was the right process and forum to impeach the award on the ground that the Tribunal lacked the requisite jurisdiction. 42. In the case of Munga Mbodi Mwenda v Muguza Jangwata Jindwa & another [2014] eKLR Angote J held that: “I hold the view that in instances where the Land Disputes Tribunal had already delivered its award, and the award was duly adopted by the subordinate court, such an award remains valid even where an appeal was pending before the Appeals Committee. Upon the repeal of the Act, all the appeals which were pending before the Appeals Committee should be transferred to the Environment and Land Court and dealt with in that court in its appellate jurisdiction. In situations where, fresh matters are led in this court if a party shows that the same issues had been dealt with and decided by the Land Disputes Tribunal and the subordinate court, then this court can only deal with those issues as an appellate court and not otherwise. 43. It is on record that an award was adopted as an order of the court and that there is an appeal that was led challenging the award in the High Court and; therefore, this court cannot deal with a fresh matter which is not an appeal.” 17. In an application for contempt in the same le, Njoroge J. dismissed the application vide ruling delivered on 6th February 2025, reported as Kambi & 3 others v Chome & 9 others [2025] KEELC 421 (KLR). He held as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18632/eng@2025-12-16 6

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“The rst issue to be dealt with is whether there is an order of the court and what its terms are. It is not in dispute that a judgment was entered in this case, which dismissed both the plainti’s claim and the defendant’s counterclaim on the basis that this court could not deal with a fresh matter which is not an appeal. It has not been demonstrated by the plainti that an appeal has been successfully lodged against the judgment of the lower court. That judgment is therefore still in force unless it is overturned in an appeal.” 18. The plainti appealed against the substantive decision of this court (Odeny J.) to the Superior Court; the appeal did not see the light of day. It is reported as Kambi & 3 others v Chome & 9 others [2024] KECA 738 (KLR), Laibuta JA. held as follows: “To my mind, the applicants have failed to surmount the rst hurdle for extension of time to lodge an appeal, namely, whether they have an arguable appeal with the likelihood of success, and conditional to which I would be bound to exercise the discretion to consider the remaining factors for grant of orders under rule 4. Having found that the suit and counterclaim in the ELC as well as the intended appeal go against the grain of the law and procedure in land adjudication, I need not go further. Accordingly, I nd that the applicant’s Motion does not satisfy the requirements for the grant of orders under Rule 4 of this Court’s Rules. The same fails and is hereby dismissed with no order as to costs.” 19. Upon reviewing the previous and current lawsuit, the pending appeal related to the contested orders, which the High Court should have addressed after the Provincial Appeals Committee decision, remains unresolved, similar to the situation in Malindi ELC 54 of 2019. The plaintis now wish this court to declare those orders stale, obsolete, and unenforceable. However, I cannot address this issue, as it has been established that the plaintis led an appeal and subsequently abandoned it, involving the same parties and subject matter. They are now pursuing a series of cases to evade the enforcement of those orders, as highlighted by the defendants. This constitutes an abuse of the court process. This matter and Malindi ELC NO. 54 of 2019 are congruent; therefore, the doctrine of res judicata crops in.” 27. As I understand the dicta of the ELC, given the pendency of the 2006 orders, which originated from the framework established under the Land Disputes Tribunal Act, 1990 (repealed), the parties should have adhered to the mechanisms of appeal established under the Act. 28. Tracing the 2006 orders, the Land Disputes Tribunal (established under section 4 of the Act) issued its award. The award was adopted by the Magistrates’ Court (as provided under section 7(2) of the Act), resulting in the orders under review. There was an appeal to the Appeals Committee (established under section 8 of the Act), which upheld the Bahari LDT decision, and subsequently an appeal to the High Court (as provided under section 8(9) of the Act). The appeal was abandoned and subsequently dismissed for want of prosecution sometime in 2010. Therefore, the 2006 orders reverted. 29. The parties were required to follow the appellate procedures set out in the repealed Act. As stated, the proper appeal was to the High Court (which was led), and therefore, ling fresh suit(s) was not appropriate as the ELC was not being approached as an appellate court under the repealed Act. See Munga Mbodi Mwenda v Muguza Jangwata Jindwa & another [2014] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18632/eng@2025-12-16 7

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30. Consequently, the parties reverted to their previous positions, namely, the 2006 orders. In subsequent suits, the ELC did not address the limitations on the execution of judgment but criticized the parties' tendency to le fresh suits and to abandon other legal channels provided by law. In my view, the matters before the ELC were a duplication of what had already been decided, and the dicta did not create any new rights or extend the life of the 2006 orders. As a result, the 2006 orders were not scrutinized under the Limitation of Actions Act before the ELC. Any contrary interpretation of the ELC's dicta would be a misinterpretation. 31. This resolves the issue concerning the documentation and materials presented before the trial court, which primarily involved documentation of the subsequent suits led before the ELC. 32. In my view, the trial court correctly focused on whether the 2006 orders were legally enforceable. It accurately determined that they were not, since nothing prevented the appellants from carrying out those orders after the process established by them concluded in 2010. The ELC cases began in 2019, 9 years after the last appellate process involving the same orders and 13 years after the orders were issued. Furthermore, all those cases were dismissed. It appears that only after the ELC dicta did the appellants realize they needed to take action, which was 19 years after the initial orders were issued and 15 years after the High Court appeal was dismissed, leading to another round of litigation. 33. I conclude that the trial court was correct in dismissing the application dated 24th February 2025, before it in its entirety, and I nd that the trial court was correct in its assessment of the time period under the Limitation of Actions Act in the enforcement of judgments. 34. Arising from the foregoing, the current appeal stands dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 16, 2025. E. K. MAKORI JUDGE In the presence of: Ms. Jillo for the Respondents Happy: Court Assistant In the absence of: Mr. Kiponda for the Appellants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18632/eng@2025-12-16 8

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