[2023] KEHC 25146 (KLR)

AKM v NNN (Civil Case 2 of 2015) [2023] KEHC 25146 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25146 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Case 2 of 2015

LW Gitari, J

November 6, 2023

Between

AKM

Applicant

and

NNN

Respondent

Ruling

1. The matter pending before me is a Notice to show cause filed by the Applicant against the respondent. The background in this matter is that this is a Matrimonial Cause filed under Matrimonial Property Act No.49/2013. The applicant had filed Originating Summons in which she was seeking orders for equal distribution of the Matrimonial Property which was acquired during the subsistence of the marriage between her and the respondent. Vide a Judgment of this court delivered by Justice Limo on 16/5/2019, the court ordered that the applicant be paid Kshs.1. 5 Million being the consideration for her monetary contribution towards construction of and development of the matrimonial home situate on Land Parcel No. Kagaari/Kigaa/xxxx.The court further held that the plaintiff is also entitled to 50% share of the property known as Kagaari/Kigaa/xxxx.

2. The defendant contends that he has transferred half share i.e 50% of the property known as Kagaari/Kigaa/xxxx to the Plaintiff but has not been able to pay Ksh.1,500,000/- as the plaintiff has cautioned the title to the land which he wishes to sell to raise the amount.

3. I have considered the notice to show cause. It is not in dispute that the respondent has not complied with the Judgment of this court. Under Section 38 of the Civil Procedure Act the procedure to be followed when committing a Judgment debtor to civil jail and attachment and sale in execution of a money decree is laid down. The Section provides:-“Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—(a)by delivery of any property specifically decreed;(b)by attachment and sale, or by sale without attachment, of any property;(c)by attachment of debts;(d)by arrest and detention in prison of any person;(e)by appointing a receiver; or(f)in such other manner as the nature of the relief granted may require:Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons to be recorded in writing, is satisfied—(a)that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-(i)is likely to abscond or leave the local limits of the jurisdiction of the court; or(ii)has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or(b)that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which, by or under any law, or custom having the force of law, for the time being in force, is exempt from attachment in execution of the decree; orc)that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.”

4. The procedure is laid down under Order 22 rule 18(1) of the Civil Procedure Rules. The rule requires that a notice must be served upon the person against whom execution is applied requiring him to show cause on a date to be fixed, why the decree should not be executed against him. See the case of Grand Greek LLC & Another –v- Nathan Chesangmoson (2015) eKLR.The rules require that a Judgment be given an opportunity to show cause why the execution of the decree should not be ordered.See Solomon Muriithi Gitandu & Another –v- Jared Maingi Mburu (2017) eKLR.

5. In this matter, the respondent has been given an opportunity to show cause why execution should not be ordered. The applicant has shown that the respondent has several parcels of land which he can dispose off to raise money to pay the decretal sum. The request that the applicant be ordered to remove the caution is not made in good faith as the respondent has other parcels of land which he can dispose off and raise money to satisfy the decree.

6. On payment of interest Section 26 of the Civil Procedure Act provides as follows:-“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”The section provides that the court may order payment of interests at such rates as the court deems reasonable to be paid on the principal sum awarded.

7. In this case, the Judge did not award interests on the sum awarded. Had the Judge intended to award interest, he should have stated so in the Judgment. The award of interest on the sum awarded is discretionary. The exercise of discretion should be done judiciously. This was a dispute over Matrimonial Property and the Judge ordered that the applicant be compensated for her contribution on the matrimonial home. The Judge saw it fit not to award interests. In the case of Jane Wanjiku Wamito –v- Athony Kigamba Hato and 3 Others 2018 eKLR, Justice Joel Ngugi (as he then was) stated:-“Our superior courts have over time come up with several principles derived from this general rule in Section 26 of the Civil Procedure Act which have over the time acquired stable meanings. The following principles seem relevant-First, at all times a trial court has wide discretion to award and fix the rate provided that the discretion must be used judiciously. Given this discretion an appellate court is therefore enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong.Second, under Section 26(1) of the Civil Procedure Act the court has discretion to award and fix the rate of interests to cover two stages namely:-a.The penned from the date of the suit is filed to date when the court gives its Judgment and,b.The period from the date of Judgment to the date of payment of the sum adjudged due to or such earlier date as the court may in its discretion fix.c.When it comes to the period before the filing the suit Section 26 Civil Procedure Act has no application.”

8. On the other hand interest charged before filing of the suit is a matter of substantive law and is only claimable based on an agreement where interest rate is stipulated, that is, contractual. Such interest must be pleaded and proved. It can also be awarded where there is a statutory right to interest.See Gulamhussein –v French Somali land Shipping Company Limited 1959 E.A 25.

9. In this matter, interest was not claimed. The Judge in his wisdom decided to order compensation by way of payment of some amount equal to half the value of the Matrimonial home. In view of the nature of the dispute, the Judge exercised discretion not to award interests. The applicant cannot therefore calculate interest which the court did not award. I find that the applicant is not entitled to interests on the sum of Kshs.1,500,000/- which the Judge awarded.

Conclusion: 10. The respondent has not shown good cause why execution should not issue. There is inordinate delay in satisfying the Judgment which was issued on 16/5/2019. I allow the application and order that Land Parcels No. Kagaari/Kigaa/xxxx, xxxx and xxxx be attached and sold by Public Auction to recover Kshs.1,500,000/- and costs of Kshs.4,050/-.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 6TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE