https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8349

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E134 OF 2015** **SOUTH NYANZA SUGAR COMPANY LIMITED……………..………… APPELLANT** **VERSUS** **PROF. RIEWA ONYANGO GENGA ………………………………… RESPONDENT** **(Being an appeal from the decision, ruling and order of Hon. E Muriuki SRM delivered on 25th November, 2015 in Migori SPMCC No. 309 of 1999)** **JUDGMENT** By a Plaint dated 31st March 1999, the Respondent sued the Appellant seeking that the Appellant discloses to the Respondent the tonnage of sugarcane harvested from his farm on plot No. Kanyamkago/ Kamgundho/ 914; that the proceeds thereof be paid to the plaintiff together with interest from the date the same fell due and payable till payment in full; The Respondent also sought for general damages for inconvenience and denial of use of the proceeds of his sugarcane together with costs of the suit and any other relief deemed fit to grant. The Trial Magistrate before whom the application dated 26th June 2015 was placed confirmed that a judgment was delivered on 4th August 1999 and decree dated 14th September 1999 extracted. That upon an appeal being lodged against the said judgment by the Appellant, the same was dismissed and the High Court confirmed the sum of Kshs. 250,000/= awarded by the lower court as general damages. The trial Magistrate said it was clear that the other prayers in the Plaint had not been executed and hence the application which he allowed was filed for purposes of execution of decree. Being aggrieved by the said ruling the Appellant lodged the appeal herein vide Memorandum of Appeal dated 30th November, 2015 the Appellant lodged the appeal herein on the following ground: 1. **That the Learned Magistrate erred in fact and in law when he held that the Appellant was under a duty to disclose to the Respondent the tonnage of the sugarcane harvested from Plot No. Kanyamkago/ Kamgundho/914 in an order made pursuant to an application for execution when in fact no such prayer had been granted in the decree.** 2. **That the Learned Magistrate erred in fact and in law when he heldv that the records were clear that the other prayers sought in the Plaint had not been executed hence the present application when there was nothing in the record to show and or prove that the said prayers in the plaint had been awarded to the Respondent in the judgment and decree.** 3. **That the Learned Magistrate erred in fact and in law when he failed to appreciate the fact that in the decree, the Respondent had only been awarded damages in the sum of Kshs. 250,000/= which amount had been settled by the Appellant in full and nothing therefore remained on that decree to be satisfied.** 4. **That the Learned Magistrate erred in law and in fact when without evidence and without finding he held that the Respondent’s be paid the proceeds in Migori SPMCC No. 634 of 2000, a suit in which the Respondent was never a party and which payments had been made in terms of the decree issued in that suit to the decree holder in that suit.** 5. **That the Learned Trial Magistrate therefore on the main decide the application which was before him against the weight of evidence contrary to the law and known legal principles thereby exercised his discretion wrongly when he failed to dismiss the Respondents application in the suit below with costs.** 6. **That the Learned Magistrate erred in law and in fact when he failed to appreciate the fact that an action to recover benefit by a decree or judgment must be commenced within the statutory timelines set out under the law of Limitations of Actions Act and further that the Respondent’s attempt to recover an alleged debt in 2015 through the application which was before him consequent upon an alleged decree which was passed on offended the law of limitation and constituted gross abuse of the court process.** 7. **That the Learned Magistrate erred in law and in fact when he failed to consider the issue of limitation which had been raised and urged before him by the Appellant.** 8. **That the Learned Magistrate erred in law and in fact when he made and issued orders against the Appellant in an execution of a decree which orders never flowed from any known court decree or court record and which orders clearly subjects the Appellant to double jeopardy and occasions a miscarriage of justice.** **Reasons Wherefore** the Appellant prays for judgment against the Respondent and asks for the following relief:- 1. That the appeal be allowed with costs 2. The Respondent’s application in the court below be dismissed with costs. The appeal herein was canvassed by way of written submissions.The Appellant’s submissions are dated 3rd May 2016 whereas the Respondent’s submissions are dated 30th June 2016. **Analysis and determination** This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in Selle v Associated Motor Boat Co. Ltd. Having considered the Record of Appeal, the application dated 26th June 2015 and the submissions by the parties, the issue arising for determination is whether the Learned Trial Magistrate could issue substantive orders through execution proceedings in the application long after judgment had been delivered and partially satisfied when those orders were neither in the judgment nor in the extracted decree. It is trite that a court executing a decree cannot travel beyond the decree or grant reliefs which were not expressly awarded in the judgment. Execution proceedings are intended only to enforce an existing decree and not to vary, enlarge, amend or introduce fresh obligations upon a judgment debtor. A court of concurrent jurisdiction equally lacks jurisdiction to sit on appeal over, review, or expand the terms of a judgment already rendered and affirmed on appeal. From the record, the judgment delivered on 4th August 1999 culminated in a decree dated 14th September 1999. The decree, as extracted, awarded the Respondent general damages in the sum of Kshs. 250,000 together with costs and interest. The Appellant contended, and it was not controverted, that the decretal sum had been fully settled. Indeed, there was no indication in the decree that the court had granted prayers compelling disclosure of tonnage harvested from Plot No. Kanyamkago/Kamgundho/914 or payment of proceeds arising therefrom. The Learned Trial Magistrate nevertheless held that “the other prayers in the Plaint had not been executed” and proceeded to allow the Respondent’s application dated 26th June 2015 for purposes of execution. With respect, that finding was erroneous. A distinction must be drawn between prayers pleaded in a Plaint and reliefs actually granted in a judgment and decree. A decree can only issue from the judgment of the court and not from unproven or unawarded prayers contained in pleadings. Order 21 Rule 7 of the Civil Procedure Rules requires that a decree shall agree with the judgment. Consequently, where the judgment did not award disclosure of tonnage or payment of proceeds, such reliefs could not properly be introduced at execution stage. The trial court therefore acted without jurisdiction in purporting to enforce obligations that did not arise from the decree before it. Further, the record shows that the original judgment had already been subjected to appellate scrutiny and upheld by the High Court. Once the appeal was determined, the subordinate court became functus officio save only for purposes of enforcing the decree as drawn. It could not reopen the substance of the dispute or issue additional substantive orders affecting the rights of the parties. The Appellant also raised the issue of limitation. Section 4(4) of the Limitation of Actions Act provides that no action may be brought upon a judgment after the expiry of twelve years from the date on which the judgment became enforceable. The application giving rise to the impugned ruling was filed in the year 2015, approximately sixteen years after the judgment of 1999. To the extent that the Respondent sought to recover alleged proceeds or enforce obligations not contained in the decree, such attempt was clearly statute barred. The Learned Trial Magistrate failed to properly address this issue despite it having been specifically raised before him. The court also notes that the Learned Magistrate referred to payments allegedly made in Migori SPMCC No. 634 of 2000 notwithstanding that the Respondent herein was not a party to that suit. There was no evidential or legal basis for importing proceedings and payments from a different matter into the present suit. Such orders exposed the Appellant to the risk of double liability and occasioned a miscarriage of justice. In the circumstances, this Court finds that the Learned Trial Magistrate misdirected himself both in fact and in law by granting orders which neither flowed from the judgment nor the decree capable of execution. The application dated 26th June 2015 ought to have been dismissed. Accordingly, the appeal is merited and is hereby allowed on the following terms: 1. The ruling and orders of the subordinate court arising from the application dated 26th June 2015 are hereby set aside in their entirety. 2. The Respondent’s application dated 26th June 2015 is hereby dismissed with costs. 3. The Appellant shall have the costs of this appeal as well as the costs of the application in the court below. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI, THIS 28TH DAY OF MAY, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE** **In the Presence of:** Victor – Court Assistant