a. Whether there was a decree or order of costs capable of execution?
19.I have gone through the proceedings in the lower court file. There was a bill of costs which was filed on January 28, 1990 by the respondent. There is nothing on record to show whether this bill was ever assessed. The appellant was brought to court under warrant of arrest on February 20, 1990 when he was ordered to pay the respondent a sum of Kshs 32,878 or in the alternative give vacant possession of his land being Baringo/Kapropita/630 to the Respondent.
20.The record further shows that on March 21, 1990 an order was extracted incorporating what transpired on February 20, 1990 but was purported to be given on March 21, 1990. It would also appear that on March 23, 1990, the appellant appeared before court where the orders of March 21, 1990 were vacated. What is interesting is that there is no record of the proceedings of either March 21, 1990 or March 23, 1990.
21.When the respondent moved to court through notice of motion dated July 4, 1990 seeking to review the orders of March 23, 1990, the application was dismissed as there was no record of proceedings of March 21, 1990 and March 23, 1990. The ruling dismissing the respondents application for review was delivered on November 24, 1992.
22.On June 8, 1990, the appellant had appeared before court where he had been summoned to show cause why he should not be committed to civil jail. When the appellant was given opportunity to respond to why he should not be committed to civil jail, he stated that the order for payment of costs had been struck out. At this juncture, the respondent’s counsel sought for time to seek instructions from his client.
23.It is after the advocate for the respondent sought instructions from his client that the application for review was filed. This application was dismissed for reasons given in paragraph 21 herein above. There was therefore no order of costs which was capable of execution. The Respondent may have been emboldened in his pursuit for non-existent costs by a ruling which was delivered on April 17, 2018 which declined the appellant’s application for removal of a restriction against the appellant’s title on grounds that the appellant had not paid costs.
b. Assuming there was a decree and/or order of costs, was the same time barred?
24.The respondent filed an application dated July 9, 2020 seeking to execute for costs which were allegedly awarded on 21/3/1990. This application was being made after three decades. Section 4(4) of the Limitation of Actions Act as well as the case of M’Ikiara M’Rinkanya & another (Supra), no execution can be allowed after expiry of 12 years from the time the decree was issued.
25.There is an argument on the part of the respondent that he was unable to execute for costs as the court file was missing. I have gone through the entire lower court file. There is no single letter alluding to the missing file. Prior to March 21, 1990, the respondent had attempted to execute for costs through notice to show cause and arrest of the appellant. All through the file was available and the respondent was able to file any application he wished including the one for execution which he made after 30 years. I therefore find that even if there was a valid decree and/ or order for costs, the same was statute barred.
c)Whether the trial court failed to adhere to the doctrine of stare decisis;
26.I have gone through the proceedings which culminated in the impugned ruling. There was no decision from a superior court which was brought to the attention of the trial magistrate which he refused to follow. Though judicial officers are supposed to appraise themselves on decisions of superior courts on topical issues, it is the duty of Advocates to assist the judicial officers by availing such decisions to the judicial officers. In the instant case, there is no basis of blaming the trial magistrate for not adhering to the doctrine of stare decisis when no decision of superior court was brought to the attention of the magistrate.
d) Whether the Respondent’s application for execution dated July 9, 2020 is res judicata;
27.The issue of res judicata was never in the grounds of preliminary objection which was raised against the Respondents notice of motion of July 9, 2020. This issue of res judicata cannot therefore be raised on appeal without the leave of the court.