[2024] KEHC 9499 (KLR)
The court found that the judgment in favour of the plaintiff remains unsatisfied and that the defendant has not shown willingness to settle the decretal sum. The court held that, in the interests of justice and fairness, the plaintiff is entitled to proceed with the sale of the attached assets in execution of the...
Source-derived case information.
- Citation
- [2024] KEHC 9499 (KLR)
- Parties
- Plaintiff: A. Jiwa Shamji Limited; Defendant: Kilimapesa Gold PTY Limited
- Court
- High Court
- Court Station
- High Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E001 of 2023
- Procedural Posture
- Civil Suit / Ruling on Application for Attachment and Sale of Assets in Execution of Decree
- Outcome
- Application for sale of attached property in execution of decree allowed.
- Judges
- F Gikonyo
- Legal Topics
- Execution of Decrees, Attachment of Property, Sale of Attached Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A. Jiwa Shamji Limited
Plaintiff
Kilimapesa Gold PTY Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Attachment and Sale of Assets in Execution of Decree
Legal Issues
- 1 Whether the plaintiff is entitled to orders for attachment and sale of the defendant's assets in execution of the unsatisfied decree.
- 2 Whether the court should authorize the sale of attached property after expiry of the statutory period.
Ratio Decidendi
The court found that the judgment in favour of the plaintiff remains unsatisfied and that the defendant has not shown willingness to settle the decretal sum. The court held that, in the interests of justice and fairness, the plaintiff is entitled to proceed with the sale of the attached assets in execution of the decree. The court further directed that the sale should not occur earlier than 14 days from the date of the ruling, in compliance with the applicable rules governing execution and auctioneers' procedures. The court also confirmed the necessity of police security during the execution process to maintain order.
Court Disposition
Application for sale of attached property in execution of decree allowed.
Orders
- The plaintiff is authorized to sell the attached property in execution of the decree.
- The sale shall not take place earlier than 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
A. Jiwa Shamji Limited v Kilimapesa Gold PTY Limited (Civil Suit E001 of 2023) [2024] KEHC 9499 (KLR) (30 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9499 (KLR)
Republic of Kenya
In the High Court at Kilgoris
Civil Suit E001 of 2023
F Gikonyo, J
July 30, 2024
Between
A. Jiwa Shamji Limited
Plaintiff
and
Kilimapesa Gold PTY Limited
Defendant
Ruling
1. The plaintiff’s ex parte notice of motion dated 14/06/2024 sought orders of attachment of the defendant’s attachable assets for purposes of sale in the realization of the decree of this court and for OCS Lolgorian police station to offer security during the execution process.
2. The application is supported by facts contained in the attached affidavit of Oscar Odongo and Hussein Sadrudin Shamji sworn on 14/06/2024.
3. Upon consideration of the application, on 14/06/2024, this court ordered and directed that; - the attachable assets of the judgment-debtor at the Lolgorian site be attached forthwith and be taken into custody by the auctioneers, Ms. Odongo Investments auctioneers; The auctioneer shall also not sell the attached properties until this application is heard; and the OCS LOLGORIAN to offer security during the attachment herein.
4. The plaintiff filed an affidavit in reply sworn by Hussein Sadrudin Shamji on 20/07/2024.
5. This court has considered the application herein. The judgment has not been satisfied. The attachable assets are now duly attached in execution of the decree herein. The defendant has not been keen on settling the decretal sum.
6. Accordingly, justice and fairness justify the sale of the attached property in execution of the decree herein. Consequently, the plaintiff may sell the attached property in accordance with the applicable court and auctioneers’ rules. The sale shall however, not be earlier than on expiry of 14 days from today.
7. It is so ordered.
DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 30THDAY OF JULY, 2024. …………………………………HON. F. GIKONYO MJUDGEIn the Presence of:C/A: Leken/NyangaresiM/s Nyamurongi for Plaintiff – PresentMs. Wandia for Defendant – Present