https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1150

Omadede v Ernest (Civil Appeal E098 of 2020) [2026] KECA 1150 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1150 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E098 of 2020 MS Asike-Makhandia, M Ngugi & LK Kimaru, JJA June 12, 2026 Between Africanus Okada Omadede Appellant and Taidora Tata Ernest Respondent (Being an appeal from the Ruling of the Environment and Land Court of Kenya at Busia (Omollo, J.) dated 17th September, 2020 in Civil Case No. 108 of 2016 Environment & Land Case 108 of 2016 ) Judgment 1.The respondent instituted proceedings against the appellant before the Environment and Land Court (ELC), seeking a declaration that the sale agreements dated 13th November, 2010, and 9th July, 2012, relating to land parcel Number South- Teso/Apokor/758 (the suit property), were null and void. The respondent also sought an order for the appellant’s eviction from the suit property. In response, the appellant filed a defence denying the claim and a counterclaim seeking compensation at the current market value of the suit property or, in the alternative, specific performance by transfer of the purchased portion of the suit property to him. 2.By a judgment dated 17th July, 2019, the learned trial Judge dismissed the respondent’s suit and allowed the appellant’s counterclaim. The learned Judge directed the respondent to compensate the appellant in the sum of Kshs. 750,000/= within six months, and in default, transfer 2¼ acres of the suit property to the appellant. 3.The appellant, by a notice of motion dated 17th February, 2020, lodged an application before the ELC seeking orders directing the Deputy Registrar to execute transfer documents on behalf of the respondent in respect of a 2¼-acre portion of the suit property in his favour. The appellant also sought orders directing the County Land Registrar to dispense with the requirement for production of the original title deed for purposes registration of the transfer. 4.The application was premised on the grounds set out therein and was supported by an affidavit sworn by the appellant on the same date. The appellant deposed that the six-month period granted by the court to the respondent to compensate the appellant lapsed on 17th January, 2020, without compliance. Further, the respondent had failed, in the alternative, to execute the necessary transfer documents in respect of the portion of the suit property in favour of the appellant. The appellant contended that the court had the requisite jurisdiction to authorize the Deputy Registrar to execute the transfer documents on behalf of the respondent and to order dispensation with the production of the original title deed during the transfer process. 5.The application was opposed. The respondent filed a replying affidavit dated 3rd March, 2020. He deposed that the appellant had not served him with the relevant decree and contended that execution could not proceed piecemeal, as the appellant had yet to tax his bill of costs. The respondent further stated that he was ready and willing to settle the sum of Kshs. 750,000/= and was only awaiting service of the certificate of costs to facilitate payment of the entire decretal amount. He added that the sum of Kshs. 750,000/= had already been deposited with his advocates pending receipt of the certificate of costs. 6.The respondent’s advocate filed a further affidavit sworn on 4th May, 2020. He deposed that he was served by the appellant’s advocate with a party to party bill of costs on 13th September, 2019, scheduled for taxation on 9th October, 2019. He deposed that the stated date was taken by the appellant ex-parte, and he indicated that the date was not convenient for him, expecting that the appellant’s advocates would invite him to fix a mutually convenient date for taxation. Instead, they were served with the application subject of this appeal. He deposed that the following day, on 5th March, 2020, the appellant’s advocate served him with a decree issued on 15th August, 2019 and a certificate of costs certified on 14th October, 2019. He argued that these documents had not been served upon him prior thereto. 7.Upon service of the said documents, the respondent’s advocate issued a cheque on the same day for Kshs. 750,000/= in favour of the appellant’s advocate, which cheque was banked. On 10th March, 2020, he received a letter from the appellant’s advocate enclosing a banker’s cheque for Kshs. 569,765/=, informing him that they had deducted Kshs. 180,235 as their taxed costs. He averred that he has not banked the said cheque. 8.In a ruling dated 17th September, 2020, the learned Judge found in favour of the respondent, and dismissed the appellant’s application. The learned Judge found that the appellant failed to seek leave of court to execute the decree before the taxation. She determined that the appellant ought to have served the respondent with the certificate of costs, and could not therfore benefit from his default. The learned Judge further determined that the appellant was estopped from declining receipt of the compensation paid by the respondent, his advocate having banked the said cheque, and deducted taxed costs. 9.The appellant, aggrieved by this decision, lodged an appeal before this Court. He has proffered four (4) grounds of appeal. The appellant faulted the learned Judge for: delving into issues within the jurisdiction of the Deputy Registrar; determining issues not before the court; misapprehending the provisions of Section 94 of the Civil Procedure Act; and, for misapprehending the facts placed before the court for determination. 10.The appeal was heard by way of written submissions. Mr. Jumba appeared for the appellant, while Mr. Juma was on record for the respondent. Counsel for the appellant submitted that the respondent did not seek extension of time to pay the sum of Kshs.750, 000/=, which was paid beyond the stipulated period of six months. He stated that the learned Judge delved into issues of late service of the decree and certificate of costs, as opposed to the gravamen of the application which was execution of the decree. 11.Counsel faulted the learned Judge for relying on section 94 of the Civil Procedure Act, yet it was on record that costs were taxed on 14th October, 2019, before the application subject of this appeal was lodged. He submitted that the question of service was a non-issue as the respondent admitted in his replying affidavit that he was served with the decree and certificate of costs before the hearing of the application. He contended that the appellant was not wrong to deduct the taxed costs from the amount that was forwarded to their advocate. 12.Counsel for the respondent, in rebuttal, submitted that the respondent was ready and willing to settle the decretal sum, and was awaiting service of the decree and certificate of costs by the appellant. He argued that the appellant obtained the decree on 15th August, 2019, and the certificate of costs on 14th October, 2019, but failed to serve the same upon the respondent. Instead, the appellant served the said documents on 5th March, 2020, days after filing his application for execution of the decree before the ELC. Counsel submitted that the respondent settled the decretal sum of Kshs. 750,000/= on the very day he was served with the decree by the appellant. 13.Counsel attributed the delay in paying the decretal sum to the appellant’s advocate’s failure to serve the respondent with the decree and certificate of costs. He submitted that execution having been objected to, the Judge had jurisdiction to determine the same by virtue of order 49 rule 5 of the Civil Procedure Rules. 14.This being a first appeal, it is the duty of this court to re-analyze and re-assess the evidence on record, in light of the grounds of appeal and the submission made on this appeal and reach its own independent conclusion. This duty was reiterated by this court in Gitobu Imanyara & 2 other v Attorney General [2016] eKLR, where the court observed thus;“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” See Selle v. Associated Motor Boat Co. [1968] EA 123. 15.The appellant’s principal complaint is that the respondent failed to pay the decretal sum of Kshs. 750,000/= within the six months stipulated in the judgment, and that upon such default, the appellant became entitled to the transfer of the 2¼ acres that was comprised in the suit property. It was on that basis that the appellant moved the court for execution of the decree by seeking to have the Deputy Registrar execute the necessary transfer documents on behalf of the respondent. In the appellant’s view, the learned Judge ought to have confined herself to the fact of default only and allow the application. 16.According to the record, the decree gave the respondent an option to compensate the appellant in the sum of Kshs. 750,000/= within six months, failing which transfer of the suit property would follow. However, the court was still entitled to examine the circumstances under which the alleged default occurred, particularly because execution of a judgment and decree is a process supervised by the court and must be undertaken fairly and in accordance with the established procedure. 17.The undisputed facts before the ELC showed that although the decree was issued on 15th August, 2019, and the certificate of costs certified on 14th October, 2019, the same were not served upon the respondent’s advocate until 5th March, 2020, after the appellant had already filed the application for execution of decree on 20th February, 2020. Upon service, the respondent immediately issued a cheque for Kshs. 750,000/= on the same day, which cheque was received and banked by the appellant’s advocates. 18.We are satisfied that in those circumstances, the learned Judge was entitled to find that the appellant could not rely on delay which was materially attributable to his own failure to serve the decree and certificate of costs within the stipulated period. The appellant could not withhold or delay service of the very documents necessary to facilitate compliance, and thereafter insist that the respondent had failed to comply with the timeline provided in the judgment and therefore the respondent’s non- compliance entitled him to the more drastic remedy of transfer of the suit property as there was default. 19.Further, the respondent’s conduct did not exhibit unwillingness to comply with the decree. On the contrary, his position was that he was ready and willing to pay the decretal sum upon being served with the decree and certificate of costs, and that payment was made immediately upon such service. That position was consistent with the undisputed fact that the appellant’s advocates accepted the cheque in the sum of Kshs.750,000/= issued by the respondent’s advocate, banked the cheque, deducted taxed costs of Kshs. 180,235/=, and returned the balance by banker’s cheque to the respondent’s advocate. Having accepted monetary compensation under the decree, the appellant could not resile from such acceptance and thereafter insist on transfer of the suit property as though payment had not been made. In any event, if the appellant formed the view that there was default even after the decretal sum was paid, he should have sought the court’s interpretation whether indeed there was default. 20.We therefore agree with the finding of the learned trial Judge that the appellant was estopped from rejecting the respondent’s compliance with the judgment and decree after his advocates had received and acted upon the payment. The appellant cannot be allowed to approbate and reprobate. Once the cheque was banked and costs deducted, the decree had substantially been satisfied in the manner contemplated by the judgment and decree. The alternative remedy of transfer of the suit property ceased to be available and could not be pursued simultaneously with, or after acceptance of, the monetary compensation. 21.Although the learned Judge referred to section 94 of the Civil Procedure Act, we note that by the time the application for execution was filed on 20th February, 2020, costs had already been taxed and a certificate of costs issued. Strictly speaking therefore, the question was not one of execution before taxation of costs. Nonetheless, that did not affect the substance of the learned Judge’s determination, which turned on the propriety of the execution process, the appellant’s failure to serve the decree and certificate of costs timeously, and the respondent’s prompt settlement of the decretal sum immediately upon such service being effected. 22.We are also not persuaded by the argument advanced by the appellant that the learned trial Judge determined matters outside her jurisdiction. Execution proceedings remain subject to the supervisory jurisdiction of the court until it is completed. The appellant himself moved the court by a substantive application seeking execution orders authorizing transfer of the suit property by having the Deputy Registrar execute the conveyancing documents on behalf of the respondent. The application was therefore properly before the Judge for determination. Further, the respondent filed a replying affidavit opposing the execution sought and raising contested issues regarding service of the decree, taxation of costs, and whether or not the decree had been satisfied. 23.Therefore, the court was called upon to determine whether the appellant was entitled to execute the decree by transfer of the suit property despite the respondent’s payment of the decretal sum, and despite service of the decree and certificate of costs being in doubt. In those circumstances, the learned Judge was entitled to determine the application and cannot be faulted for addressing the contentious issues arising therefrom. 24.Upon our own re-evaluation of the record and the law, we are satisfied that the learned Judge properly exercised her discretion in dismissing the appellant’s application. We find no basis for interfering with the decision of the ELC. 25.Accordingly, the appeal is devoid of merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA............................JUDGE OF APPEALMUMBI NGUGI.........................JUDGE OF APPEALL. KIMARU.........................JUDGE OF APPEALI certify that this is a true copy of original.Signed.DEPUTY REGISTRAR.