[1995] KECA 78 (KLR)
The Court of Appeal held that the appeal was misconceived because, under Order 45 rule 17(2) of the Civil Procedure Rules, once judgment is entered in terms of an award and no steps are taken to set aside the award, an appeal does not lie except where the decree is in excess of or not in accordance with the award....
Source-derived case information.
- Citation
- [1995] KECA 78 (KLR)
- Parties
- Appellant: Elekia Ochieng Ouma; Appellant: Joseph Ongus Agan; Respondent: Samuel Odhiambo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 178 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_struck_out
- Judges
- AM Akiwumi
- Legal Topics
- Land Boundary Disputes, Trust of Land, Injunctions, Survey Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elekia Ochieng Ouma
Appellant
Joseph Ongus Agan
Appellant
Samuel Odhiambo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court erred in entering judgment in terms of the District Surveyor's award without setting it aside.
- 2 Whether the appellants had a right of appeal against the judgment entered in terms of the award under Order 45 rule 17(2) of the Civil Procedure Rules.
Ratio Decidendi
The Court of Appeal held that the appeal was misconceived because, under Order 45 rule 17(2) of the Civil Procedure Rules, once judgment is entered in terms of an award and no steps are taken to set aside the award, an appeal does not lie except where the decree is in excess of or not in accordance with the award. In this case, the judgment entered by the High Court was strictly in accordance with the award of the District Surveyor, which had been accepted by both parties by their conduct. Since neither party sought to set aside the award, and the decree was not shown to be in excess of or inconsistent with the award, there was no legal basis for the appeal. The Court therefore struck out...
Court Disposition
appeal_struck_out
Orders
- The appeal is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
Civil Appeal 178 of 1995
ELEKIA OCHIENG OUMA
JOSEPH ONGUS AGAN ………………………… APPELLANTS
AND
SAMUEL ODHIAMBO………..…….....……….. RESPONDENTS
(Appeal from the Judgment and decree of the High Court of Kenya at Kisii (The Hon.
Justice Tom Mbaluto) dated on 14th July, 1995.
IN
H.C.C.C. NO. 22 OF 1995)
***********************
JUDGMENT OF THE COURT
By the plaint dated 20th December, 1994 the respondent (Plaintiff) instituted suit against the appellants (defendants) for annexing a portion of his land and causing it to be incorporated and registered as part of the appellants’ land parcels numbers SUNA EAST/WASWETA/9532 and 9533. The respondent sought, amongst others, orders for a declaration that the appellants jointly and severally hold 4. 5 acres of the said parcels of land in trust for him and an injuction to restrain the appellants from entering or using the said parcels of land. In their written statement of defence the appellants traversed all the allegations contained in the plaint.
On 12th April, 1995 the parties by concent referred the dispute to the District Surveyor, Migori, to visit the disputed parcels of land and establish where the boundary lay before the head title was sub-divided giving rise to the suit lands. The award was duly filed and read out to the parties by the learned judge (Mbaluto, J). None of the parties took steps to have the award set aside; and precisely, a month afterwards on 14th July, 1995 the learned judge in the presence of both parties entered judgment in terms of the award whose effect was to extract portions of land from the appellants’ parcels and to incorporate them in the respondent’s title.
The appellants, who are represented by counsel, have put forward four grounds of appeal which in the main challenge the entering of judgment in terms of the award.
This appellants, who are represented by counsel, have put forward four grounds of appeal which in the main challenge the entering of judgement in terms of the award.
This appeal is misconceived as it does not lie at all Under Order 45 rule 17(2) of the Civil Procedure rules upon judgment being entered according to the award a decree except in so far as the decree is in excess of, or not in accordance with, the award.
This appeal is struck out with costs to the respondent.
Dated and delivered at Kisumu this 23rd day of November, 1995.
A. M. AKIWUMI
………………………
JUDGE OF APPEAL
P. K. TUNOI
………………………
JUDGE OF APPEAL
A.A. LAKHA
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.