1. The respondent herein petitioned the trial court via petition dated 5th February 2020 seeking the determination of the estate, the rightful heir(s) therein and their rightful shares; that the estate properties be vested in the heir(s) herein and their determined shares; fair distribution of the estate properties amongst all the rightful heir(s) therein according to the Islamic law; the respondent herein be ordered by the honourable Court to refund back to the estate, all the monies he had been taking, or collecting from the estate properties and utilizing, since from the 2010, to date; the respondent herein be further ordered by the Hon. Court to deposit in court all the deceased’s titles & ownership documents for safe keeping, pending final determination of this petition; cost of this petition be provided for and the respondent bear the same; and, any other reliefs that the honourable Court may deem fit to grant to petitioner.
2. The trial court delivered its judgment on 13th October 2020 vide which it:-
a) listed the assets that form part of the estate of the deceased as follows:-
i. Swahili house erected on Plot No. 70 situated in the Kongowea area, within Mombasa County;
ii. Half share of the Swahili house erected on Plot No. 39 situated in the Kongowea area, within Mombasa County;
iii. An undivided share of the Swahili house erected on Plot No. 123 situated in Bamburi, within Mombasa County;
iv. A beneficial share of one million Kenyan shillings from the estate of the deceased’s father; and
v. Monies or balance at D.T.B Bank, Nkrumah Road branch A/C No. 5361435001.
b) Listed the rightful heirs of the deceased and their shares as follows;
Heirs Status Share fraction Share percentage
Nuru Yislam widow 8/64 12.5%
Mohamed Yislam son 14/64 21.9%
Tarek Yislam Mbarak Abaad son 14/64 21.9%
Ahmed Yislam son 14/64 21.9%
Warda Yislam daughter 7/64 10.9%
Zahra Yislam daughter 7/64 10.9%
The court further issued the following orders against the appellant (who was the then respondent):-
i. That the respondent is hereby directed by this honourable court to give accounts of all the monies collected from the rental houses erected on Plot Nos. 70, 39 and 123 from 2010 to date, not later than the 5th of November 2020;
ii. That the respondent is as well directed by this hon court to file a bank statement of the A/C No.5361435001 held at D.T.B Bank, Nkrumah road branch, to this court, not later than 5th November 2020;
iii. That that the respondent is hereby directed by this honourable court to hand over the relevant title & ownership documents of the house erected on Plot No. 70 to the petitioner herein not later than 5th November 2020; and
iv. That each party to bear the costs of the suit.
3. A decree was extracted and issued on 12th March 2021, which indicated the orders of the court as follows:-
a) That what forms part of the estate of the deceased herein, Yislam Mbarak Abaad, is as follows:-
i. Swahili house erected on Plot No. 70 situated at Kongowea area, within Mombasa County;
ii. Half share of the Swahili house erected on Plot No. 39 situated at Kongowea area, within Mombasa County.
iii. An undivided share of the Swahili house erected on Plot No. 123 situated at Bamburi, within Mombasa county;
iv. A beneficial share of one million Kenyan Shillings from the estate of the deceased’s father;
v. Monies or balance at D.T.B Bank, Nkrumah Road branch A/C No. 5361435001;
b) That the rightful heirs of the deceased and their shares are as follows;
Heirs Status Share fraction Share percentage
Nuru Yislam widow 8/64 12.5%
Mohamed Yislam son 14/64 21.9%
Tarek Yislam Mbarak Abaad son 14/64 21.9%
Ahmed Yislam son 14/64 21.9%
Warda Yislam daughter 7/64 10.9%
Zahra Yislam daughter 7/64 10.9%
c) The respondent is hereby directed by this honourable court to give accounts of all the monies collected from the rental houses erected on Plot Nos. 70, 39 and 123 from 2010, to date, not later than the 5th of November 2020;
d) That the bank manager of Diamond Trust Bank, Nkrumah Road branch, Mombasa, is also directed by this hon court to file a bank statement of the A/C No.5361435001 held at D.T.B Bank, Nkrumah Road branch, to this court, not later than 5th November 2020;
e) That the respondent is hereby directed by this honourable court to hand over the relevant title & ownership documents of the house erected on Plot No. 70 to the petitioner herein not later than 5th November 2020; and
f) That each party bear the costs of the suit.
4. The appellant filed an application seeking the stay of execution of the judgment of the court and all orders arising therefrom through a notice of motion application dated 2nd November 2020. The court issued stay of execution orders pending hearing and determination of Mombasa HCCA No.E007 of 2020 and also issued the following orders; that a joint account be opened between the petitioner/respondent and the respondent/applicant within 7 days from the date hereof; that the respondent/applicant to deposit the one million Kenya Shillings in the said joint account within 15 days from the date hereof; that all the rental incomes from the estate properties, be deposited in the said joint account commencing with the rental income of February 2021 until the appeal is heard and determined; that failure to comply with the aforementioned above orders the orders of stay will automatically lapse and the petitioner/respondent will be at liberty to execute for the same. The court stated that there would be no orders as to costs.
5. The respondent then moved the trial court for execution of the decree given on 13th October 2020 and issued on 12th March 2021, by way of notice to show cause why a warrant of arrest should not issue dated 8th April 2021. The parties, through their advocates, then entered into a consent order which was adopted as an order of the court on 27th April 2021.
6. The appellant herein filed a Notice of Motion dated 24th August 2021 seeking the following orders; that this honourable court be pleased to set aside and/or quash the irregular, erroneous and unlawful application for execution of decree dated 8th day of April 2021 and all other applications and orders emanating therefrom, having been erroneously extracted and issued; and, that the costs of this application be provided for.
7. The trial court in its ruling after analysing the chronology of events leading to the application herein stated, based on the chronology of the event as reproduced from the record, that it was erroneous for the appellant to allege that the application for execution of decree dated 8th April 2021 was irregular and unlawful, more so, considering item (6) of this honourable court’s ruling of 2nd February 2020 which clearly stated that failure of the appellant to comply with the orders attached to the stay, would mean that will automatically lapse. The respondent would then be at liberty to execute. Having failed to comply with the orders attached to the stay, the petitioner was within the law to make an application for execution, and the court cannot be faulted for entertaining the same. The Kadhi then dismissed the application with no orders to costs.
8. Dissatisfied, the appellant appealed to this court seeking to have the ruling delivered on 30th September 2021, be set aside in its entirety and the appellant’s Notice of Motion dated 24th August 2021 be allowed with costs. The appeal is based on the following grounds:-
a) That the honourable Kadhi erred in law and in fact by dismissing the appellant’s application despite there being merit herein;
b) That the honourable Kadhi erred in law and in fact in failing to entirely consider the grounds and facts contained in the appellants’ application dated and filed on the 24th August 2021;
c) That the honourable Kadhi erred in law and in fact by failing to entirely consider the grounds listed and facts contained in the appellants’ affidavit in support of the said motion, sworn on 24th August 2021;
d) That the honourable Kadhi erred in law and in fact in failing to find that the application for execution of the decree of 8th April 2021 was not in harmony with the decree of the court issued on 12th March 2021, and as such, the same was irregular;
e) That the honourable Kadhi failed to appreciate the grounds upon which the appellant's motion was based, and as a result reached an erroneous finding of fact and law;
f) That the honourable Kadhi erred in law and in fact in failing to appreciate that by law, an application for execution of the decree must comply and be in tandem with the decree itself;
g) That the honourable Kadhi erred in law and in fact in failing to appreciate the appellant’s motion challenged not the liberty to execute but the manner in which the application for execution was done;
h) That the learned Kadhi erred in law and in fact in failing to appreciate that the appellant’s motion was not the right of the respondent to execute but the irregular and unlawful manner in which the application for execution was made and done;
i) That the honourable Kadhi, in reaching his finding, through his ruling of 30th September,2021, considered extraneous factors, thereby reaching an erroneous finding;
j) That the honourable Kadhi erred in law and in fact by completely failing to determine the issue whether the application for execution for the decree was regular, justifiable and legal;
k) That the honourable Kadhi failed to appreciate the nature of the applicant’s motion and, as a result, failed to make a proper finding;
l) That the honourable Kadhi erred in law and fact by dealing with extraneous issues not relevant to the issues raised by the appellant;
m) that the honourable Kadhi erred in law and fact in failing to distinguish the nature, import and issues raised of the appellant’s motion from those of the stay of execution of the judgment and or decree;
n) That the honourable Kadhi erred in law and in fact in failing to find that the nature of the applicant’s motion was distinct and separate from the stay of execution of the decree;
o) That the honourable Kadhi erred in law and in fact in assuming that reproducing the chronological order of the events in the matter would amount to determining the issues;
p) That the honourable Kadhi erred in law and in fact by failing to take into account the irregularity of the application of execution of the decree in that the figures arrived at as the decretal amount were based on speculation;
q) That the honourable Kadhi erred in law and in fact by failing to take into account that the decretal amount in the respondent’s application for execution could not have been arrived at without first the provision of accounts as ordered for in the honourable Kadhi’s judgment of 13th October 2020, issued on the 12th March 2021;
r) That the honourable Kadhi erred in law and in fact by failing to appreciate that the aspect of accounts has, to date, not been determined, and as such, the application for execution of the decree could not have been made without the accounts having been provided;
s) That the honourable Kadhi erred in law and in fact by failing to appreciate the fact that since the aspect of accounts was pending, no application for execution for any sum could be heard and determined.
t) That the honourable Kadhi erred in law and fact in failing to consider the appellant’s ground that the accounts of rent so rendered in the application for execution of the decree are rendered on speculative figures;
u) That the honourable Kadhi erred in fact by failing to appreciate that the rent for the year 2010 would differ from the rent of 2021, as such, the figures so used to arrive at the decretal amount in the respondent’s application for decree were erroneous;
v) That the honourable Kadhi erred in fact by failing to appreciate that for the provision of the correct figures in the application for execution, the correct accounts foremostly ought to have been provided;
w) That the honourable Kadhi erred in law and in fact by failing to appreciate that the application for execution of the decree by the respondents was irregular and erroneous in that the period from which the accounts ought to have been rendered ie from the year 2010 was a period within which the deceased, the late Yislam Mbarak Abud, was still alive;
x) That the honourable Kadhi erred in fact by failing to find that the application for execution by the respondent’s was erroneous and irregular in that the accounting period (from the year 2010) within which accounts ought to have been provided, was erroneous given that the deceased himself, the late Yislam Mbarak Abud died on the 26th November 2016;
y) That the honourable Kadhi erred in law and in fact by failing to find that the application for execution of the respondent was irregular and erroneous given that the accounting period of 2010 in itself was erroneous, and the figures so used to calculate the decretal sum were fictitious, speculative figures based on rent collected in the current year 2021.
9. The appeal was canvassed by way of written submissions highlighted on 25th July 2024.
10. Ms Iman Said, learned counsel for the appellant, submitted that the appeal faults the mode of execution of the decree. Since there was a stay, the appellant had yet to produce any account of rental proceeds. Counsel relied on Order 21, Rule 8(2) of the Civil Procedure Rules, which requires the decree to be submitted to the other party for approval, a requirement that was not met in the matter before the court below. She urged that the decree contain issues of accounting for rental proceeds for a total of Kes.7,060,250/-, which was erroneously arrived at. The judgment required the appellant to provide accounts, and thus it was erroneous for the respondent to purport to extract a decree on the basis of accounts which the appellant should have provided.
11. Counsel further submitted that they were faulting the extraction of the decree and that the period for rental proceeds does not conform to the judgment that had been issued. That the calculation of rent is mere speculation and that the rent would differ every year and vary with time. The appeal faults the period within which the accounts ought to have been submitted. Counsel urged the court to allow the appeal.
12. Mr Oddiaga, counsel for the respondent, submitted that they were supporting the ruling of the trial court. That stay was conditional, and it was after the appellant failed to comply that execution was applied for. Further Order 21, Rule 8, is subordinate to Section 1A of the Civil Procedure Act.
13. Counsel submitted that the respondent had the right to apply for execution and put figures in his application as he was not given details of the rent collected. That the consent order has not been complied with. Even after agreeing on how the rent was to be distributed, the appellant had still not complied.
14. Further, the unaccounted debt goes back to 2010. Mr Oddiaga urged that the appeal is not merited and should be dismissed with costs. He submitted that the Kadhi’s judgment was reasonable and should not be disturbed.
15. In response, counsel submitted that the consent was a result of the erroneous extraction of the decree, which resulted in the arrest of the appellant.
16. At the heart of this appeal is the procedure of executing a decree. Once a court delivers its judgment under Order 21 of the Civil Procedure Rules, execution commences immediately as provided for under Order 22 of the said rules. Order 21, Rule 8 of the Civil Procedure Rules outlines the procedure for approving a decree or order, and it uses the word 'may', which is interpreted by some to mean that it is permissive or optional. Further Order 21, Rule 8(7) of the said Rules, provides that the court can approve a decree upon the pronouncement of the judgment.
Order 21 rule 8
(1) A decree shall bear the date of the day on which the judgment was delivered.
(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(4) On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.
(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court, and references to the registrar and judge in the sub-rules shall refer to the magistrate.
(6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn up, shall be prepared and signed in like manner as a decree.
(7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order.
17. In the case of China Wu Yi Company Limited v Belgo Holding Limited [2018] KEELC 278 (KLR), it was held as follows:-
“It is the defendant’s/applicant’s contention that they were not served with a draft decree and or order for approval. I have gone through the replying affidavit of Lui Qing Hua, the Project Manager, and the same does not contest the defendant’s/applicant’s position.
In the case of Rono Limited vs Caltex Oil Limited, H No 1388 of 1992, Mbaluto J held that:-
“…… as far as the instant case is concerned, what the law provides is clear, direct and cannot be the subject of any doubt, reasonable or otherwise. It provides that in the event of disagreement, the issue of a decree is to be referred to the judge who heard the case for settlement, and the deputy registrar has no jurisdiction to certify or approve a disputed decree. The effect of that provision is that the decree certified by the deputy registrar, in this matter, was an incurable nullity, and it matters not that it is the subject of an appeal to the Court of Appeal.”
18. Landmark Holdings Limited v Robert Macharia Kinyua [2018] KEHC 9187 (KLR) it was held that:-
“Order 21 rule 8 Civil Procedure Rules provides for the preparation and dating of a decree. The party who prepares the draft decree forwards it to the other party for approval before the draft is forwarded to the Deputy Registrar for purposes of signing and sealing if the decree is drawn in conformity with the judgment. There is no claim herein that the decree has not been drawn in accordance with the judgment. The Applicant has not denied that he was aware of the judgment. On the other hand, the Respondent has not shown that he forwarded the draft decree to the Applicant for approval.
What is the import of the above scenario? The provision for the forwarding of the draft decree to the other party for approval serves a purpose. Even in the cases where the decree is correctly drawn, the preparation of the decree signals the readiness of the Decree Holder to commence the execution process. The Applicant would have been alerted to the preparation of the decree and probably taken steps to secure his interests. I therefore agree with the Applicant’s counsel’s submissions that the decree was irregularly obtained without due process being followed.”
19. The authorities I have referred to above address the issues herein and need no elucidation. Since the contents and issues indicated in the application for execution do not reflect what was in the judgment of 13th October 2020, nor the orders of the 2nd February 2021 and the same was not given to the appellant for approval, the ruling of 30th September 2021 cannot stand. Under the circumstances, I find and hold that the appeal has merit and allow the same.
20. Although ordinarily costs follow the event and are at the discretion of the court, it is my view that, given the kinship ties between the parties, an award of costs will not promote reconciliation and restoration of the familial relations. Under the circumstances, I order that each party bear its costs.
21. It is so ordered.
Dated and signed at Mombasa, this 14th day of October 2024. Delivered virtually through Microsoft TEAMS
2. The trial court delivered its judgment on 13th October 2020 vide which it:-
a) listed the assets that form part of the estate of the deceased as follows:-
i. Swahili house erected on Plot No. 70 situated in the Kongowea area, within Mombasa County;
ii. Half share of the Swahili house erected on Plot No. 39 situated in the Kongowea area, within Mombasa County;
iii. An undivided share of the Swahili house erected on Plot No. 123 situated in Bamburi, within Mombasa County;
iv. A beneficial share of one million Kenyan shillings from the estate of the deceased’s father; and
v. Monies or balance at D.T.B Bank, Nkrumah Road branch A/C No. 5361435001.
b) Listed the rightful heirs of the deceased and their shares as follows;
Heirs Status Share fraction Share percentage
Nuru Yislam widow 8/64 12.5%
Mohamed Yislam son 14/64 21.9%
Tarek Yislam Mbarak Abaad son 14/64 21.9%
Ahmed Yislam son 14/64 21.9%
Warda Yislam daughter 7/64 10.9%
Zahra Yislam daughter 7/64 10.9%
The court further issued the following orders against the appellant (who was the then respondent):-
i. That the respondent is hereby directed by this honourable court to give accounts of all the monies collected from the rental houses erected on Plot Nos. 70, 39 and 123 from 2010 to date, not later than the 5th of November 2020;
ii. That the respondent is as well directed by this hon court to file a bank statement of the A/C No.5361435001 held at D.T.B Bank, Nkrumah road branch, to this court, not later than 5th November 2020;
iii. That that the respondent is hereby directed by this honourable court to hand over the relevant title & ownership documents of the house erected on Plot No. 70 to the petitioner herein not later than 5th November 2020; and
iv. That each party to bear the costs of the suit.
3. A decree was extracted and issued on 12th March 2021, which indicated the orders of the court as follows:-
a) That what forms part of the estate of the deceased herein, Yislam Mbarak Abaad, is as follows:-
i. Swahili house erected on Plot No. 70 situated at Kongowea area, within Mombasa County;
ii. Half share of the Swahili house erected on Plot No. 39 situated at Kongowea area, within Mombasa County.
iii. An undivided share of the Swahili house erected on Plot No. 123 situated at Bamburi, within Mombasa county;
iv. A beneficial share of one million Kenyan Shillings from the estate of the deceased’s father;
v. Monies or balance at D.T.B Bank, Nkrumah Road branch A/C No. 5361435001;
b) That the rightful heirs of the deceased and their shares are as follows;
Heirs Status Share fraction Share percentage
Nuru Yislam widow 8/64 12.5%
Mohamed Yislam son 14/64 21.9%
Tarek Yislam Mbarak Abaad son 14/64 21.9%
Ahmed Yislam son 14/64 21.9%
Warda Yislam daughter 7/64 10.9%
Zahra Yislam daughter 7/64 10.9%
c) The respondent is hereby directed by this honourable court to give accounts of all the monies collected from the rental houses erected on Plot Nos. 70, 39 and 123 from 2010, to date, not later than the 5th of November 2020;
d) That the bank manager of Diamond Trust Bank, Nkrumah Road branch, Mombasa, is also directed by this hon court to file a bank statement of the A/C No.5361435001 held at D.T.B Bank, Nkrumah Road branch, to this court, not later than 5th November 2020;
e) That the respondent is hereby directed by this honourable court to hand over the relevant title & ownership documents of the house erected on Plot No. 70 to the petitioner herein not later than 5th November 2020; and
f) That each party bear the costs of the suit.
4. The appellant filed an application seeking the stay of execution of the judgment of the court and all orders arising therefrom through a notice of motion application dated 2nd November 2020. The court issued stay of execution orders pending hearing and determination of Mombasa HCCA No.E007 of 2020 and also issued the following orders; that a joint account be opened between the petitioner/respondent and the respondent/applicant within 7 days from the date hereof; that the respondent/applicant to deposit the one million Kenya Shillings in the said joint account within 15 days from the date hereof; that all the rental incomes from the estate properties, be deposited in the said joint account commencing with the rental income of February 2021 until the appeal is heard and determined; that failure to comply with the aforementioned above orders the orders of stay will automatically lapse and the petitioner/respondent will be at liberty to execute for the same. The court stated that there would be no orders as to costs.
5. The respondent then moved the trial court for execution of the decree given on 13th October 2020 and issued on 12th March 2021, by way of notice to show cause why a warrant of arrest should not issue dated 8th April 2021. The parties, through their advocates, then entered into a consent order which was adopted as an order of the court on 27th April 2021.
6. The appellant herein filed a Notice of Motion dated 24th August 2021 seeking the following orders; that this honourable court be pleased to set aside and/or quash the irregular, erroneous and unlawful application for execution of decree dated 8th day of April 2021 and all other applications and orders emanating therefrom, having been erroneously extracted and issued; and, that the costs of this application be provided for.
7. The trial court in its ruling after analysing the chronology of events leading to the application herein stated, based on the chronology of the event as reproduced from the record, that it was erroneous for the appellant to allege that the application for execution of decree dated 8th April 2021 was irregular and unlawful, more so, considering item (6) of this honourable court’s ruling of 2nd February 2020 which clearly stated that failure of the appellant to comply with the orders attached to the stay, would mean that will automatically lapse. The respondent would then be at liberty to execute. Having failed to comply with the orders attached to the stay, the petitioner was within the law to make an application for execution, and the court cannot be faulted for entertaining the same. The Kadhi then dismissed the application with no orders to costs.
8. Dissatisfied, the appellant appealed to this court seeking to have the ruling delivered on 30th September 2021, be set aside in its entirety and the appellant’s Notice of Motion dated 24th August 2021 be allowed with costs. The appeal is based on the following grounds:-
a) That the honourable Kadhi erred in law and in fact by dismissing the appellant’s application despite there being merit herein;
b) That the honourable Kadhi erred in law and in fact in failing to entirely consider the grounds and facts contained in the appellants’ application dated and filed on the 24th August 2021;
c) That the honourable Kadhi erred in law and in fact by failing to entirely consider the grounds listed and facts contained in the appellants’ affidavit in support of the said motion, sworn on 24th August 2021;
d) That the honourable Kadhi erred in law and in fact in failing to find that the application for execution of the decree of 8th April 2021 was not in harmony with the decree of the court issued on 12th March 2021, and as such, the same was irregular;
e) That the honourable Kadhi failed to appreciate the grounds upon which the appellant's motion was based, and as a result reached an erroneous finding of fact and law;
f) That the honourable Kadhi erred in law and in fact in failing to appreciate that by law, an application for execution of the decree must comply and be in tandem with the decree itself;
g) That the honourable Kadhi erred in law and in fact in failing to appreciate the appellant’s motion challenged not the liberty to execute but the manner in which the application for execution was done;
h) That the learned Kadhi erred in law and in fact in failing to appreciate that the appellant’s motion was not the right of the respondent to execute but the irregular and unlawful manner in which the application for execution was made and done;
i) That the honourable Kadhi, in reaching his finding, through his ruling of 30th September,2021, considered extraneous factors, thereby reaching an erroneous finding;
j) That the honourable Kadhi erred in law and in fact by completely failing to determine the issue whether the application for execution for the decree was regular, justifiable and legal;
k) That the honourable Kadhi failed to appreciate the nature of the applicant’s motion and, as a result, failed to make a proper finding;
l) That the honourable Kadhi erred in law and fact by dealing with extraneous issues not relevant to the issues raised by the appellant;
m) that the honourable Kadhi erred in law and fact in failing to distinguish the nature, import and issues raised of the appellant’s motion from those of the stay of execution of the judgment and or decree;
n) That the honourable Kadhi erred in law and in fact in failing to find that the nature of the applicant’s motion was distinct and separate from the stay of execution of the decree;
o) That the honourable Kadhi erred in law and in fact in assuming that reproducing the chronological order of the events in the matter would amount to determining the issues;
p) That the honourable Kadhi erred in law and in fact by failing to take into account the irregularity of the application of execution of the decree in that the figures arrived at as the decretal amount were based on speculation;
q) That the honourable Kadhi erred in law and in fact by failing to take into account that the decretal amount in the respondent’s application for execution could not have been arrived at without first the provision of accounts as ordered for in the honourable Kadhi’s judgment of 13th October 2020, issued on the 12th March 2021;
r) That the honourable Kadhi erred in law and in fact by failing to appreciate that the aspect of accounts has, to date, not been determined, and as such, the application for execution of the decree could not have been made without the accounts having been provided;
s) That the honourable Kadhi erred in law and in fact by failing to appreciate the fact that since the aspect of accounts was pending, no application for execution for any sum could be heard and determined.
t) That the honourable Kadhi erred in law and fact in failing to consider the appellant’s ground that the accounts of rent so rendered in the application for execution of the decree are rendered on speculative figures;
u) That the honourable Kadhi erred in fact by failing to appreciate that the rent for the year 2010 would differ from the rent of 2021, as such, the figures so used to arrive at the decretal amount in the respondent’s application for decree were erroneous;
v) That the honourable Kadhi erred in fact by failing to appreciate that for the provision of the correct figures in the application for execution, the correct accounts foremostly ought to have been provided;
w) That the honourable Kadhi erred in law and in fact by failing to appreciate that the application for execution of the decree by the respondents was irregular and erroneous in that the period from which the accounts ought to have been rendered ie from the year 2010 was a period within which the deceased, the late Yislam Mbarak Abud, was still alive;
x) That the honourable Kadhi erred in fact by failing to find that the application for execution by the respondent’s was erroneous and irregular in that the accounting period (from the year 2010) within which accounts ought to have been provided, was erroneous given that the deceased himself, the late Yislam Mbarak Abud died on the 26th November 2016;
y) That the honourable Kadhi erred in law and in fact by failing to find that the application for execution of the respondent was irregular and erroneous given that the accounting period of 2010 in itself was erroneous, and the figures so used to calculate the decretal sum were fictitious, speculative figures based on rent collected in the current year 2021.
9. The appeal was canvassed by way of written submissions highlighted on 25th July 2024.
10. Ms Iman Said, learned counsel for the appellant, submitted that the appeal faults the mode of execution of the decree. Since there was a stay, the appellant had yet to produce any account of rental proceeds. Counsel relied on Order 21, Rule 8(2) of the Civil Procedure Rules, which requires the decree to be submitted to the other party for approval, a requirement that was not met in the matter before the court below. She urged that the decree contain issues of accounting for rental proceeds for a total of Kes.7,060,250/-, which was erroneously arrived at. The judgment required the appellant to provide accounts, and thus it was erroneous for the respondent to purport to extract a decree on the basis of accounts which the appellant should have provided.
11. Counsel further submitted that they were faulting the extraction of the decree and that the period for rental proceeds does not conform to the judgment that had been issued. That the calculation of rent is mere speculation and that the rent would differ every year and vary with time. The appeal faults the period within which the accounts ought to have been submitted. Counsel urged the court to allow the appeal.
12. Mr Oddiaga, counsel for the respondent, submitted that they were supporting the ruling of the trial court. That stay was conditional, and it was after the appellant failed to comply that execution was applied for. Further Order 21, Rule 8, is subordinate to Section 1A of the Civil Procedure Act.
13. Counsel submitted that the respondent had the right to apply for execution and put figures in his application as he was not given details of the rent collected. That the consent order has not been complied with. Even after agreeing on how the rent was to be distributed, the appellant had still not complied.
14. Further, the unaccounted debt goes back to 2010. Mr Oddiaga urged that the appeal is not merited and should be dismissed with costs. He submitted that the Kadhi’s judgment was reasonable and should not be disturbed.
15. In response, counsel submitted that the consent was a result of the erroneous extraction of the decree, which resulted in the arrest of the appellant.
16. At the heart of this appeal is the procedure of executing a decree. Once a court delivers its judgment under Order 21 of the Civil Procedure Rules, execution commences immediately as provided for under Order 22 of the said rules. Order 21, Rule 8 of the Civil Procedure Rules outlines the procedure for approving a decree or order, and it uses the word 'may', which is interpreted by some to mean that it is permissive or optional. Further Order 21, Rule 8(7) of the said Rules, provides that the court can approve a decree upon the pronouncement of the judgment.
Order 21 rule 8
(1) A decree shall bear the date of the day on which the judgment was delivered.
(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(4) On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.
(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court, and references to the registrar and judge in the sub-rules shall refer to the magistrate.
(6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn up, shall be prepared and signed in like manner as a decree.
(7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order.
17. In the case of China Wu Yi Company Limited v Belgo Holding Limited [2018] KEELC 278 (KLR), it was held as follows:-
“It is the defendant’s/applicant’s contention that they were not served with a draft decree and or order for approval. I have gone through the replying affidavit of Lui Qing Hua, the Project Manager, and the same does not contest the defendant’s/applicant’s position.
In the case of Rono Limited vs Caltex Oil Limited, H No 1388 of 1992, Mbaluto J held that:-
“…… as far as the instant case is concerned, what the law provides is clear, direct and cannot be the subject of any doubt, reasonable or otherwise. It provides that in the event of disagreement, the issue of a decree is to be referred to the judge who heard the case for settlement, and the deputy registrar has no jurisdiction to certify or approve a disputed decree. The effect of that provision is that the decree certified by the deputy registrar, in this matter, was an incurable nullity, and it matters not that it is the subject of an appeal to the Court of Appeal.”
18. Landmark Holdings Limited v Robert Macharia Kinyua [2018] KEHC 9187 (KLR) it was held that:-
“Order 21 rule 8 Civil Procedure Rules provides for the preparation and dating of a decree. The party who prepares the draft decree forwards it to the other party for approval before the draft is forwarded to the Deputy Registrar for purposes of signing and sealing if the decree is drawn in conformity with the judgment. There is no claim herein that the decree has not been drawn in accordance with the judgment. The Applicant has not denied that he was aware of the judgment. On the other hand, the Respondent has not shown that he forwarded the draft decree to the Applicant for approval.
What is the import of the above scenario? The provision for the forwarding of the draft decree to the other party for approval serves a purpose. Even in the cases where the decree is correctly drawn, the preparation of the decree signals the readiness of the Decree Holder to commence the execution process. The Applicant would have been alerted to the preparation of the decree and probably taken steps to secure his interests. I therefore agree with the Applicant’s counsel’s submissions that the decree was irregularly obtained without due process being followed.”
19. The authorities I have referred to above address the issues herein and need no elucidation. Since the contents and issues indicated in the application for execution do not reflect what was in the judgment of 13th October 2020, nor the orders of the 2nd February 2021 and the same was not given to the appellant for approval, the ruling of 30th September 2021 cannot stand. Under the circumstances, I find and hold that the appeal has merit and allow the same.
20. Although ordinarily costs follow the event and are at the discretion of the court, it is my view that, given the kinship ties between the parties, an award of costs will not promote reconciliation and restoration of the familial relations. Under the circumstances, I order that each party bear its costs.
21. It is so ordered.
Dated and signed at Mombasa, this 14th day of October 2024. Delivered virtually through Microsoft TEAMS