[2020] KEHC 5416 (KLR)
The court found that the applicant failed to provide any material evidence to support the claim that the respondent was likely to alienate or dispose of the suit property in order to defeat the execution of the decree. The mere speculation or apprehension of such an act, without concrete evidence or the initiation...
Source-derived case information.
- Citation
- [2020] KEHC 5416 (KLR)
- Parties
- Applicant: Ameli Inyangu & Partners Advocates; Respondent: Millenium Management Limited
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 3 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Certificate of Urgency for Writ of Prohibition
- Outcome
- application dismissed
- Judges
- DB Nyakundi
- Legal Topics
- Execution of Decrees, Writ of Prohibition, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ameli Inyangu & Partners Advocates
Applicant
Millenium Management Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Certificate of Urgency for Writ of Prohibition
Legal Issues
- 1 Whether the applicant is entitled to a writ of prohibition to prevent the respondent from disposing of the suit property to satisfy a pending decree.
- 2 Whether mere speculation of alienation of property is sufficient to grant a writ of prohibition.
Ratio Decidendi
The court found that the applicant failed to provide any material evidence to support the claim that the respondent was likely to alienate or dispose of the suit property in order to defeat the execution of the decree. The mere speculation or apprehension of such an act, without concrete evidence or the initiation of execution proceedings, does not meet the threshold required for the issuance of a writ of prohibition. The court emphasized that the process of prohibition is not absolute and must be grounded in demonstrable facts, not conjecture. Consequently, the application for a writ of prohibition was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The Certificate of Urgency seeking a writ of prohibition is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
MISCELLANEOUS APPLICATION NO. 3 OF 2019
AMELI INYANGU & PARTNERS ADVOCATES ......APPLICANT
VERSUS
MILLENIUM MANAGEMENT LIMITED ..........RESPONDENT
CORAM: Hon. Justice R. Nyakundi
Ms. AmeliInyangu Advocates for the Applicant
Ms. Fred Adhoch Advocates for the Respondent
RULING
The applicant vide Certificate of Urgency dated 11. 5.2020 prayed for the issue of a writ of prohibition against the respondent suit property referred as 5046/4/KILIFI – CR NO 14251 on account that it’s the only asset attachable to satisfy the pending decree of the Court.
On the same date the Certificate was ordered served upon the respondent pursuant to rules and regulations governing judiciary guidelines during the COVID – 19 pandemic.
Determination
This application is quite unique and novel and I do not wish to disguise my surprise that such an application should be considered necessary and proper in view of the chequered history of this litigation. The scope of this application is to be determined under Section 38 of the Civil Procedure Act.
Prohibition is a process of preventing the respondent from intermeddling with the identifiable property for having been considered as the only asset to satisfy the decree obtained by the applicant. Considering the aforesaid Section it is apparent that prohibition on transfer of property is not absolute.
Mr. Adhoch on behalf of the applicant has prefaced his arguments by stating that the respondent is likely to alienate, dispose or transfer the property to a third party as a means of defeating the execution and enforcement of the money decree.That contention is clearly not supported with materials on record.
There is no evidence that simultaneous to this Certificate of Urgency the applicant has initiated proceedings in execution of the decree. Mere speculation that the respondent is likely to alienate or dispose off the suit property by way of sale to avoid settling the decree is not sufficient for this Court to grant a writ of prohibition as adverted to by the applicant.
Therefore, the Certificate of Urgency on this issue alone is dismissed.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 29TH DAY OF MAY 2020
..............................
R. NYAKUNDI
JUDGE
In the presence of:
1. Ms. Wambui holding brief for FredAdhoch for the respondent