|Civil Case 158 of 2009
|DAMAR ODAK v MOSES OCHICHI (Suing as personal representative of Fanuel Ochichi - deceased)
|31 Mar 2011
|High Court at Kisii
|Milton Stephen Asike-Makhandia
|DAMAR ODAK v MOSES OCHICHI (Suing as personal representative of Fanuel Ochichi - deceased)  eKLR
|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
IN THE HIGH COURT OF KENYA
CIVIL CASE NO. 158 OF 2009
DAMAR ODAK ..........................................................................................................................................APPELLANT
(Being an appeal from an Order of Eviction and Ruling of the Hon. G. H Oduor Deputy Registrar
at Kisii, dated 31st July, 2009 in HCCC No. 227 of 1998, executed on 2nd April, 1991)
- That the plaintiff was the allotee of plot No. 108 at Oyugis town jointly with two others.
The judgment of the court in terms above was delivered on 1st November, 1990.
On or about 2nd October, 1998, the respondent’s father passed on. The respondent then petitioned for a grant of letters of administration ad colligenda bona for purposes of executing the decree passed in Kisii HCCC No. 227 of 1998. Having obtained the same, the respondent commenced execution proceedings on 9th August, 2002 quoting the decree sought to be executed as having been issued by court on 2nd April, 1991. Subsequently, a notice to show cause why the appellant should not be committed to civil jail for failing to comply with the order of court directing her to remove the fence was issued and served on the appellant. However to date what became of that notice to show cause is unknown going by the court record.
In a reserved ruling delivered on 31st July, 2009, the Deputy Registrar rendered himself thus on the application:- “… in conclusion I deem that the J/D has not shown sufficient reason as to why execution should not issue against her. I hereby issue an order that the defendant vacates plot No. 108 at Oyugis forthwith. She is further ordered to remove fence put up in the said plot herself. The OCS Oyugis police station is ordered to ensure compliance..”. That order by the Deputy Registrar triggered this appeal. In a seven (7) point memorandum of appeal, the appellant complained that:-
2. That the learned Deputy Registrar erred as on points of law and fact when he failed to note that there was only a court judgment dated 01.11.1990 in favor of the plaintiff and respondents of which no decree had been extracted and served upon the defendant.
4. That the learned Deputy Registrar erred as a matter of law and fact by holding that since the counsel of the petitioner did not cite a section of limitation law which made the decree statutory time barred and failed to cite authorities to that effect then decree on judgment dated 01.11.1990 in the suit is still good in law for enforcement.
6. That the learned Deputy Registrar having noted that declaration in judgment dated 01.11.1990 being clear and contents of the decree relate to plaintiff’s should have addressed himself to issues raised by counsel of appellant concerning limitation.
When the appeal came up for hearing before Musinga J. on 30th September, 2010, Mr. Nyakongo and Mr. Okenye learned counsel for the appellant and respondent respectively agreed that the same be canvassed by way of written submissions. Those written submissions were subsequently filed and exchanged. However by the time that was being done, Musinga J. had left the station on transfer. Parties therefore agreed that I should proceed, craft and deliver the judgment on the basis of the written submissions in place of Musinga J.
The first issue which I must grapple with is whether this court has jurisdiction to entertain this appeal as of right. The order appealed from was issued by the Deputy Registrar of this court. Under order 49 rule 7(1) of the Civil Procedure Rules the Deputy Registrar has jurisdiction to hear and determine an application made under order 22. The order appealed from was for execution of the decree covered by order 22 of the Civil Procedure Rules. Again under order 49 rule 7 (2) of the Civil Procedure rules, an appeal from a decision of the registrar under the above order is appealable to a judge in chambers. In the premises, Mr. Okenye is not right when he forcefully argues in his written submissions that this appeal cannot lie as the Deputy Registrar was not dealing with a formal preliminary or interlocutory application made before the suit was ready for trial in terms of order XLVI rule 7 now order 47 rule 7 of the Civil Procedure Rules and that since the order was issued on a Notice to show cause, any aggrieved party thereof should come to court by way of objection proceedings.
The decree sought to be executed was dated 2nd April, 1991, yet there was no such decree or judgment between the appellant and respondent. This was an issue of law going to jurisdiction. The only judgment of court in favour of the respondent capable of execution was one delivered on 1st November, 1990. As it is therefore the learned magistrate proceeded to make the order on a defective and or non-existent decree. This was a valid reason why the decree should not have been executed against the appellant in the first place. The respondent seems to acknowledge the fact that there was an error in the notice to show cause as regards the date of the decree sought to be executed. However, he submits that, such an error is curable by virtue of sections 79A, 99 and 100 respectively of the Civil Procedure Act. That is all fine. However, such remedy should be invoked before the order is made. It cannot be invoked on appeal. Nothing stopped the respondent from moving the court as appropriate to amend the date of the decree before the application was heard orally on the date of the hearing of the application. But again the respondent did not appear on that date. He cannot now fall back to those provisions of the law to try and resurrect his case, when he should have invoked them before the Deputy Registrar made the order.
I would answer the issues canvassed by the respondent as above in terms that he should have raised those issues with the Deputy Registrar for his ruling thereon. He did not since he did not appear during the proceedings. Legally, therefore he cannot raise them on this appeal. Secondly, discretion cannot be exercised in an oppressive manner or in vaccum. It cannot be used to confer a right which is expressly forbidden by statute. Discretion cannot be used to extend time for the doing of an act when a statute categorically provides that such an action be undertaken within a specified period of time. Discretion cannot be used to confer jurisdiction when there is none. Yes, the issue of limitation was raised before the Deputy Registrar and he made a ruling thereon. It is precisely for that reason that we have this appeal. In any event, that does not bar the appellant from raising the issue considering the fact that the Deputy Registrar misdirected himself on the same by holding that “… a decree is the formal expression of a conclusive court order. Mr. Nyakongo did not refer to the specific provision that would bar the implementation of a court order … of time. That it is almost 20 years since the judgment sought to be executed was passed is all the more reason why such a judgment ought to be enforced …”. The mere fact that counsel did not point out section 4 (4) of the Limitation of Actions Act to the Deputy Registrar, does not mean that it does not exist. It is a matter of law and every judicial officer is expected or presumed to know the law. With a title bit of diligence, the Deputy Registrar will no doubt in his research on the subject have come by the said provision of the law. Some things need not necessarily to be drawn to the attention of the judicial officer by counsel appearing in a matter. One is at liberty to take judicial notice of trite law.
Finally, the respondent cannot be heard to say that the application before the Deputy Registrar was a continuation of the previous application. The record does not support that contention. The fate of the previous application is unknown and in any event the prayers sought in both applications are totally different. Therefore the case of Nandra (supra) is of no assistance to the respondent.
Judgment dated, signed and delivered at Kisii this 31st day of March, 2011.