D E N v P N N [2017] KEHC 8427 (KLR)
- Citation
- [2017] KEHC 8427 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- DN Musyoka
- Case number
- Civil Suit 20 of 2011
- Language
- English
More details
- Court
- High Court
- Panel
- DN Musyoka
- Case number
- Civil Suit 20 of 2011
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The respondent failed to comply with the specific and unambiguous order of the Court of Appeal requiring her to value the properties and pay the petitioner the difference in value within 120 days of filing the valuation reports. The respondent neither undertook the valuations nor made payment, and has not provided any proposals or justification for her inaction. The High Court, as the trial court, is mandated to oversee execution of its decrees and to give effect to the appellate court's orders, especially where liberty to apply is expressly granted. The respondent's application for review, variation, or setting aside of the implementation orders lacks merit as no sufficient cause or error has been demonstrated. The principle of finality in litigation and the need for compliance with court orders outweigh the respondent's arguments. Consequently, the application is dismissed and the interim orders are discharged.
Court disposition
application dismissed
Orders
- The Motion dated 14th November 2016 is dismissed.
- Each party shall bear their own costs.
- The interim orders made on 17th November 2016 are discharged.
02
Material facts
Parties
D E N
ApplicantP N N
RespondentAmounts and remedies
- Compensation for Disparity in Property Values (original Order): KES 1,000,000
03
Procedural history
Posture
Civil Suit / Ruling on Application for Review of Implementation Orders Following Appellate Decision
04
Questions and positions
Legal issues
- 01
Whether the respondent is entitled to review, variation, or setting aside of the High Court orders implementing the Court of Appeal decision.
- 02
Whether the respondent complied with the Court of Appeal's directive to value the properties and pay the difference within the stipulated period.
- 03
Whether the High Court has jurisdiction to order sale or otherwise enforce compliance with the appellate decree.
Party arguments
- Applicant
- The respondent failed to utilize the 120 days granted by the Court of Appeal to seek review of its orders and has not complied with the directive to value the properties and pay the difference. The applicant argues that the respondent's application for review is without merit and that litigation must come to an end.
- Respondent
- The respondent contends that the Court of Appeal did not order the sale of the subject property and that the petitioner did not demand the difference in value between the properties. She seeks review, setting aside, or variation of the implementation orders on these grounds.
05
Court’s reasoning
Legal principles
- 01
Court of Appeal decision dated 9th March 2015
A party must comply with appellate court orders regarding valuation and payment within stipulated timelines; failure to do so may result in enforcement by the trial court.
- 02
General principles of civil procedure; Court of Appeal order granting liberty to apply
The trial court retains jurisdiction to oversee execution of its decrees and to give directions on implementation where the appellate court grants liberty to apply.
- 03
Order 45 of the Civil Procedure Rules
Review, variation, or setting aside of court orders requires demonstration of sufficient cause or error apparent on the face of the record.
06
Ratio, limits and disposition
Ratio decidendi
The respondent failed to comply with the specific and unambiguous order of the Court of Appeal requiring her to value the properties and pay the petitioner the difference in value within 120 days of filing the valuation reports. The respondent neither undertook the valuations nor made payment, and has not provided any proposals or justification for her inaction. The High Court, as the trial court, is mandated to oversee execution of its decrees and to give effect to the appellate court's orders, especially where liberty to apply is expressly granted. The respondent's application for review, variation, or setting aside of the implementation orders lacks merit as no sufficient cause or error has been demonstrated. The principle of finality in litigation and the need for compliance with court orders outweigh the respondent's arguments. Consequently, the application is dismissed and the interim orders are discharged.
Obiter and limits
- Litigation must come to an end; parties cannot be allowed to delay compliance with court orders indefinitely.
- The High Court is bound in law to oversee the execution of its decrees, especially where the appellate court grants liberty to apply.
Court disposition
application dismissed
- The Motion dated 14th November 2016 is dismissed.
- Each party shall bear their own costs.
- The interim orders made on 17th November 2016 are discharged.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL SUIT NO. 20 OF 2011
D E N………………………………………………PETITIONER
VERSUS
P N N………………………………………......….RESPONDENT
RULING
1. I delivered a ruling herein on 8th September 2016, wherein I gave directions on the implementation of a Court of Appeal decision rendered on 9th March 2015.
2. The respondent has come to court by a Motion dated 14th November 2016 seeking review, setting aside or variation of the said orders. The grounds upon which the review is sought are set out on the face of the application, as well as in the affidavit sworn by the respondent on 14th November 2016. The principal grounds appear to be that the decision by the Court of Appeal had not ordered sale of the subject property, and in any event the petitioner had not demanded from the respondent the difference in value between Nyandarua/Oljoro Orok Salient/[particulars withheld] and Nairobi Block 32/[particulars withheld] High View Estate Phase II House No. [particulars withheld].
3. The Motion is opposed. The petitioner filed a notice of preliminary objection and grounds of opposition, dated 16th November 2016. He has advanced a number of grounds, principally saying that the respondent failed to take advantage of the 120 days given to her by this court to enable her seek review at the Court of Appeal of the orders granted by that court on 9th March 2015.
4. The application was urged before me orally on 17th November 2016. Counsel appearing addressed me at length on the various orders made in the matter, and expounded on the grounds that they have set out on their respective court papers.
5. This court had on 19th July 2012 delivered a judgment wherein Nairobi Block 32/[particulars withheld] was awarded to the respondent, while Nyandarua/Oljoro Orok Salient/[particulars withheld] was given to the petitioner. She was to pay Kshs. 1,000, 000. 00 to the petitioner to compensate him for the loss of the matrimonial home and to cover for the disparity in the values of the two assets.
6. The petitioner was aggrieved by that order and appealed. The Court of Appeal did not overturn the order of the superior court, it only tinkered with it, the petitioner was still to get Nyandarua/Oljoro Orok Salient/[particulars withheld], while the respondent took Nairobi Block 32/[particulars withheld]. The only thing that was to change was the sum of Kshs. 1,000, 000.
00. Instead of that amount being paid to the petitioner by the respondent, the respondent was directed to get the two properties valued and within 120 days from the date of the filing of the valuation reports in court to pay the difference in the values to the petitioner.
7. The respondent, from what I can decipher from the record before me, did not comply with the said order, by getting the properties valued and paying the shortfall between the values of the two assets to the petitioner within the 120 days from the date of the filing of the valuation reports. It is the petitioner who caused the properties to be valued, and who filed the valuation reports in court. To date the respondent has not taken any step to comply with the Court of Appeal decision, hence the move by the petitioner to have directions given on compliance with the said order. The Court of Appeal had ordered that there was liberty on the part of the parties to move the High Court appropriately. The petitioner has done so.
8. It has been argued, rather persuasively, that the Court of Appeal had not ordered sale of the subject property. That is indeed true. But whether the property is to be sold or not is matter for the High Court which is the trial court which made the original decree, and which is bound in law to oversee the execution of the decree in the matter.
9. The Court of Appeal made a very specific order directed at the respondent, telling her to have the two assets valued, and after that file the valuation reports in court, and 120 days after the filing pay to the petitioner the shortfall between the values of the two assets. The respondent has not complied with that order made on 9th March 2015. She has made no proposals whatsoever on the way out of the stalemate. Surely, the petitioner cannot just sit and wring his fingers waiting ad infinitum for the respondent to act. Litigation must come to an end.
10. The failure by the respondent to comply with the Court of Appeal order, no doubt, has consequences. The said consequences are for determination by this court, for the Court of Appeal gave the parties liberty to apply to the High Court with regard to implementation of the order. It is in that respect that this court was moved by the petitioner following the failure by the respondent to act as ordered by the Court of Appeal.
11. I do not find any basis for review or variation or setting aside of the orders of 8th September 2016 in the circumstances. The Motion dated 14th November 2016 is for dismissal. Each party shall bear their own costs. The interim orders made on 17th November 2016 are accordingly discharged.
12. It is so directed.
DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF FEBRUARY, 2017.
W. MUSYOKA
JUDGE
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