[2022] KEHC 15655 (KLR)

Abura (trading as Oasis Den Constructing Engineering Limited) v Wapangana & another (Civil Suit 15 of 2012) [2022] KEHC 15655 (KLR) (Commercial and Tax) (14 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15655 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 15 of 2012

DO Chepkwony, J

November 14, 2022

Between

Harriet Naigaga Abura

Plaintiff

trading as Oasis Den Constructing Engineering Limited

and

Eric Kimingich Wapangana

1st Defendant

Eunice Mwihaki Kariuki

2nd Defendant

Ruling

1. Before this court is an amended notice of motion application dated June 7, 2022 filed by the defendant/applicants and brought pursuant to sections 1A, 1B & 3A all of the Civil Procedure Act, and order 22 rule 22 and order 45 rule 1 both of the Civil Procedure Rules 2010, which seeks inter-alia the following orders:-a.Spent;b.Spent;c.That the ruling delivered by the Hon. Deputy Registrar on the 5th of May 2022 be set aside;d.That costs of this application be provided for.

2. The grounds upon which the application is premised are that vide the ruling delivered by the Hon. Deputy Registrar on May 5, 2022 committed the applicants to civil jail for a period of months. Consequently, warrants of arrest were issued against the 1st applicant to be executed by OCS Bungoma in respect of purported execution of decretal sum despite the fact that the Applicant had complied by paying the sum of Kshs.160,000/= pursuant to consent order dated May 7, 2018. Further, that the applicants have complied by making payments in the monthly instalments as agreed and unless the warrants of arrest are set aside, the 1st applicant will be prejudiced and could lose the chance of being re-elected as the member of County Assembly in Bungoma County.

3. The plaintiff/Decree Holder has opposed the application vide her replying affidavit she swore on June 7, 2022. She adduces only one main ground, that the application is grossly incompetent and lacks credence for not being supported with by an affidavit or even attaching the warrants of arrest and copy of ruling sought to be set aside. In an earlier affidavit which she swore on May 30, 2022 before the amendment of the application, the Respondent averred that the Judgment Debtor has never complied with orders and Judgment of this court. She stated that he only paid the instalment after being arrested and committed to civil jail. She added that the Judgment Debtor’s nomination to political positions has nothing with his obligation to pay the decretal sum.

4. The application was canvassed by way of written submissions and as the record reflects both parties complied with the plaintiff/decree-holder filing her submissions dated July 19, 2022 wherein she maintained that the amended application ought to be dismissed for not being supported by an affidavit and ought to be dismissed whereas the Defendant/Judgment Debtor filed submissions dated June 22, 2022 arguing that in delivering her ruling, the Deputy Registrar ignored the fact that there was a consent agreement to liquidate the decretal sum in monthly instalments of Kshs.160,000/- and by delivery of the ruling, the Judgment Debtor had not defaulted in paying any instalment. On that wavelength, the Judgment Debtor argued that the consent had a contractual effect and in ordering his committal to civil jail, the Deputy Registrar had descended into the scene of litigation by re-writing the contractual agreement of the parties.

Analysis and Determination 5. Having set out each party’s perspective as above, I am of the view that there are only two issues arising for determination being;a.whether the application is incompetent for not being supported by an affidavit;b.whether the Applicant has made a case to warrant the setting aside of the deputy Registrar’s ruling dated May 5, 2022.

6. On whether the amended application is defective for not being supported by an affidavit, the Decree Holder urges the court to dismiss the application for not being supported by an affidavit. The Judgment Debtor has not responded on the issue. Nonetheless, I have read through the amended application and the same reads that it is supported by grounds on its face and the affidavit in support of the application of Eric Kimingich Wapangana. The record bears witness that the said Eric Kimingich swore an affidavit on May 11, 2022 before its amendment and in my respectful view the said grounds in that affidavit would sufficiently support the application even after its amendment. In any event, order 1 of the Civil Procedure Rulesintimates that a motion shall state the nature and grounds on which it is based, and the relief sought but does not oust its competency for not being supported by an affidavit.

7. In the present circumstanced, it would be against the policy of the law to strike out the amended application on mere technicality as agitated for by the decree holder/ respondent. And instead, I invoke the intrinsic power of this court as provided under rule 3(8) of the Practice and Procedure Rules which enjoins the court to make such orders as may be necessary for the ends of justice, as well as article 159(2)(d) and (e) of the Constitution, 2010 respectively that obliges a court to administer justice without undue regard to procedural technicalities so as to protect and promote the purpose and principles of the Constitution. I thus decline to dismiss the application as sought.

8. On the second issue of whether the applicant has made a case for setting aside the Deputy Registrar’s decision, the applicant has majorly relied on the ground that the Deputy Registrar ignored the fact that there was a consent dated May 7, 2018 with regard to payment of the decretal sum, and he had not defaulted in making the said instalments.

9. I have read through the Deputy Registrar’s ruling and find her reasoning for issuing the arrest warrants was as a result of the Judgment Debtor’s failure to comply with an order of the court on payment of the decretal sum as ordered. It has also come out that the judgment debtor has previously been committed to civil jail over the same debt and was later released on basis of the consent which he again failed to consistently honour. Thus, the chronology of events which the debtor does not dispute indicates that the judgment debtor/applicant is a recalcitrant debtor. The warrants of arrest were therefore proper and in any event the Applicant has not adduced evidence that he has consistently made the instalment as agreed in the consent.

10. In the foregoing, I find no viable ground to warrant the setting aside of the Deputy Registrar’s ruling and as such, the amended application dated June 7, 2022 is without merit. I proceed to dismiss it in its entirety with costs to the decree holder/respondent.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF OCTOBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Plaintiff/Decree Holder/Respondent in personNo appearance for Defendant/Judgment Debtor/ApplicantCourt Assistant - Sakina