Please Wait. Searching ...
|Case Number:||Civil Appeal 178 of 1995|
|Parties:||Elekia Ochieng Ouma & Joseph Ongus Agan v Samuel Odhiambo|
|Date Delivered:||23 Nov 1995|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Akilano Molade Akiwumi, Philip Kiptoo Tunoi, Abdulrasul Ahmed Lakha|
|Citation:||Elekia Ochieng Ouma & another v Samuel Odhiambo  eKLR|
|Case History:||(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)|
|History Docket No:||H.C.C.C. NO. 22 OF 1995|
|History Judges:||Tom Mbaluto|
Civil Practice and Procedure - arbitration - appeal against a judgment entered in terms of the arbitration award - appellants challenging the entering of the award - matters to which such an appeal under the Civil Procedure Rules Order 45 rule 17(2) is confined - whether the decree was in excess of or not in accordance with the award - whether the appeal was proper.
|Case Outcome:||Appeal struck out|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
Civil Appeal 178 of 1995
ELEKIA OCHIENG OUMA
JOSEPH ONGUS AGAN ………………………… APPELLANTS
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.
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
JUDGE OF APPEAL
I certify that this is a true copy of the original.