(Being an Appeal against a Ruling by Hon. H.A. Okello in Chief Magistrate MCCC No. 8453/2007 Delivered on 28th February, 2025).
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
4. In the primary suit, a two-pronged preliminary objection was raised;
a. There is in existence a moratorium involving Concord Insurance Company Limited and all claims are to be referred to the Policy holders Compensation Fund.
b. The judgement herein is more that twelve (12) years old and is caught up by limitation of time.
5. In the Ruling delivered by the Learned Magistrate, the Appellant were aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the learned Resident Magistrate erred in law and fact ignoring that execution proceedings started on 6th June, 2024 when Jenen Auctioneers instructed by the Plaintiff/Judgement Creditor, extracted warrants to execute the decree against the Defendant/Judgement Debtor, about eight months after issuance of the Decree dated 9th September, 2013.
b. That the learned Resident Magistrate erred in failing to note that the Judgement Creditor has been in and out of the court pursuing execution of the Judgement delivered in her favour.
c. That the learned Resident Magistrate erred in finding that the application for Notice to show cause dated 21st August, 2024 was time barred did not start running as the Judgement Creditor already commenced proceedings to execute.
d. That the learned Resident Magistrate erred in law by finding that the Judgement dated 28th August 2012 was beyond 12 years limitation period and ought to have been executed by the end of the period, when it was the judgement Debtor who occasioned frustration of the execution process and a party cannot be a beneficiary of their own mischief.
6. The trial Magistrate dealt with the issue of time limitation in respect to execution of a decree and disposed of the preliminary Objection on that score. This dismissal, is the subject of this appeal.
7. Consequently, the reliefs sought are;
a. That the entire decision of the Magistrate delivered on 28th February, 2025 be set aside and or annulled.
b. That this honourable court do compel the Judgement Debtor to settle the entire decretal sum plus interest and costs, up to the date of payment.
c. That this honourable court make a declaration that the Judgement Debtor is not covered by the Moratorium
d. Any other relief that the court may deem fit to issue.
8. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
9. Black’s Law Dictionary 10th Edition Pages 34-35 defines an action as; An action has been defined to be an ordinary proceeding in a Court of justice, by which one party prosecutes another party for enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. But, in some sense this definition is equally applicable to special proceedings. More accurately, it is defined to be any judicial proceeding, which if conducted to a determination, will result in a judgment or decree. The action is said to terminate at judgment.
10. Section 4(4) Limitation of Action Act that provides; “(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.
11. To get handle of this matter, I seek to rely on these English decisions which apply pari materia to section 4(4) of the Limitations of Actions Act;
a. Natwest Bank Vs Powney [1990] 2 All ER 416 while interpreting section 24 of the English Limitations of Actions Act, 1980 the court said; “On 8th November 1985 a warrant of possession was issued but not executed until 1988 as the proceedings to set aside the warrant were ongoing. On 20th October 1988 the County Court gave judgment on setting aside the warrant as it was contrary to Section 24 of limitation Act of 1980.On appeal by the bank, it was held; “An application for leave to issue execution of a judgment was not an action within Section 38 (1) of 1980 Act”
b. In W. T. Lamb Vs Sons Ltd vs Rider [1948] 2 All ER, 402, CA on 14th November 1938, Judgment was entered against the Defendant for goods sold and delivered. No steps were taken to enforce judgment until 25th March 1946. The Plaintiff issued summons for leave to proceed with execution, notwithstanding those 6 years had elapsed. The Master refused to grant leave and the Applicant did not appeal. In 1948, the Applicants filed another summons to enforce judgment after 6 years and the master granted leave. The Defendants appealed. The Court of Appeal observed per incuriam “The right to sue on a judgment has always been regarded as a matter quite distinct from the right to execute on it. The 2 conceptions have been the subject of different legislative treatment and the definition of action in S 31 of the Limitation Act 1939 has not the effect of merging the 2 together. Execution is essentially a matter of procedure- machinery which the Court can, subject to the Rules from time in force, operate for the purpose of enforcing judgments or order.”
12. With due respect, what is contemplated under the provisions of Section 4(4) of the Limitation of Actions Act, is the commencement of the execution date. It does not refer to the completion period of the execution process. This, I believe, is given credence by Article 159(2) (b) of the Constitution which requires that justice shall be done without unreasonable delay. The term unreasonable delay envisages a scenario of circumstances, context and touch of each case. Simply put, each case has to be looked through its own peculiar lenses. Consequently, I hold that this is my understanding of the interpretation.
13. The brief facts of this case are that Appellant obtained warrants of execution by Jenen Auctioneers as evidenced by JW1 1-3 but the Auctioneers were stopped by a court Orders as evidenced by JW4-6. Thereafter, the appellant did a letter to the Respondent demanding settlement of the Judgement debt since the Moratorium placed on Concord Insurance did not cover the judgement debt in this matter. These letters are marked JWI 7-8. To my understanding, the appellant was not indolent for the entire statutory period, but instead thereof, there have been interruptions, in the interval. By expansion of Jurisprudence in land law on 12-year limitation period in respect to adverse possession, I must say that, in this matter there has been no a continuous 12-year interrupted term as there have been diverse commencement dates of execution from the date of delivery of Judgement. Therefore, a 12-year period has been a disjointed term.
14. In the circumstances of the analysis, I find that the Learned Magistrate applied the relevant section in a blanket form by failing to contextualize it with the facts of this case.
15. Putting all these together, I make a finding that the Appeal is meritorious.
a. The Appeal is successful.
b. I set aside the ruling delivered on 28th February, 2025.
c. Costs to the appellant.
Ruling delivered in Court virtually in the presence of Court Assistant Mr Sagasi and in the absence of parties this 9th September, 2026.
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
4. In the primary suit, a two-pronged preliminary objection was raised;
a. There is in existence a moratorium involving Concord Insurance Company Limited and all claims are to be referred to the Policy holders Compensation Fund.
b. The judgement herein is more that twelve (12) years old and is caught up by limitation of time.
5. In the Ruling delivered by the Learned Magistrate, the Appellant were aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the learned Resident Magistrate erred in law and fact ignoring that execution proceedings started on 6th June, 2024 when Jenen Auctioneers instructed by the Plaintiff/Judgement Creditor, extracted warrants to execute the decree against the Defendant/Judgement Debtor, about eight months after issuance of the Decree dated 9th September, 2013.
b. That the learned Resident Magistrate erred in failing to note that the Judgement Creditor has been in and out of the court pursuing execution of the Judgement delivered in her favour.
c. That the learned Resident Magistrate erred in finding that the application for Notice to show cause dated 21st August, 2024 was time barred did not start running as the Judgement Creditor already commenced proceedings to execute.
d. That the learned Resident Magistrate erred in law by finding that the Judgement dated 28th August 2012 was beyond 12 years limitation period and ought to have been executed by the end of the period, when it was the judgement Debtor who occasioned frustration of the execution process and a party cannot be a beneficiary of their own mischief.
6. The trial Magistrate dealt with the issue of time limitation in respect to execution of a decree and disposed of the preliminary Objection on that score. This dismissal, is the subject of this appeal.
7. Consequently, the reliefs sought are;
a. That the entire decision of the Magistrate delivered on 28th February, 2025 be set aside and or annulled.
b. That this honourable court do compel the Judgement Debtor to settle the entire decretal sum plus interest and costs, up to the date of payment.
c. That this honourable court make a declaration that the Judgement Debtor is not covered by the Moratorium
d. Any other relief that the court may deem fit to issue.
8. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
9. Black’s Law Dictionary 10th Edition Pages 34-35 defines an action as; An action has been defined to be an ordinary proceeding in a Court of justice, by which one party prosecutes another party for enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. But, in some sense this definition is equally applicable to special proceedings. More accurately, it is defined to be any judicial proceeding, which if conducted to a determination, will result in a judgment or decree. The action is said to terminate at judgment.
10. Section 4(4) Limitation of Action Act that provides; “(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.
11. To get handle of this matter, I seek to rely on these English decisions which apply pari materia to section 4(4) of the Limitations of Actions Act;
a. Natwest Bank Vs Powney [1990] 2 All ER 416 while interpreting section 24 of the English Limitations of Actions Act, 1980 the court said; “On 8th November 1985 a warrant of possession was issued but not executed until 1988 as the proceedings to set aside the warrant were ongoing. On 20th October 1988 the County Court gave judgment on setting aside the warrant as it was contrary to Section 24 of limitation Act of 1980.On appeal by the bank, it was held; “An application for leave to issue execution of a judgment was not an action within Section 38 (1) of 1980 Act”
b. In W. T. Lamb Vs Sons Ltd vs Rider [1948] 2 All ER, 402, CA on 14th November 1938, Judgment was entered against the Defendant for goods sold and delivered. No steps were taken to enforce judgment until 25th March 1946. The Plaintiff issued summons for leave to proceed with execution, notwithstanding those 6 years had elapsed. The Master refused to grant leave and the Applicant did not appeal. In 1948, the Applicants filed another summons to enforce judgment after 6 years and the master granted leave. The Defendants appealed. The Court of Appeal observed per incuriam “The right to sue on a judgment has always been regarded as a matter quite distinct from the right to execute on it. The 2 conceptions have been the subject of different legislative treatment and the definition of action in S 31 of the Limitation Act 1939 has not the effect of merging the 2 together. Execution is essentially a matter of procedure- machinery which the Court can, subject to the Rules from time in force, operate for the purpose of enforcing judgments or order.”
12. With due respect, what is contemplated under the provisions of Section 4(4) of the Limitation of Actions Act, is the commencement of the execution date. It does not refer to the completion period of the execution process. This, I believe, is given credence by Article 159(2) (b) of the Constitution which requires that justice shall be done without unreasonable delay. The term unreasonable delay envisages a scenario of circumstances, context and touch of each case. Simply put, each case has to be looked through its own peculiar lenses. Consequently, I hold that this is my understanding of the interpretation.
13. The brief facts of this case are that Appellant obtained warrants of execution by Jenen Auctioneers as evidenced by JW1 1-3 but the Auctioneers were stopped by a court Orders as evidenced by JW4-6. Thereafter, the appellant did a letter to the Respondent demanding settlement of the Judgement debt since the Moratorium placed on Concord Insurance did not cover the judgement debt in this matter. These letters are marked JWI 7-8. To my understanding, the appellant was not indolent for the entire statutory period, but instead thereof, there have been interruptions, in the interval. By expansion of Jurisprudence in land law on 12-year limitation period in respect to adverse possession, I must say that, in this matter there has been no a continuous 12-year interrupted term as there have been diverse commencement dates of execution from the date of delivery of Judgement. Therefore, a 12-year period has been a disjointed term.
14. In the circumstances of the analysis, I find that the Learned Magistrate applied the relevant section in a blanket form by failing to contextualize it with the facts of this case.
15. Putting all these together, I make a finding that the Appeal is meritorious.
a. The Appeal is successful.
b. I set aside the ruling delivered on 28th February, 2025.
c. Costs to the appellant.
Ruling delivered in Court virtually in the presence of Court Assistant Mr Sagasi and in the absence of parties this 9th September, 2026.