[2010] KEHC 1532 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Miscellaneous Civil Application 83 of 2007

AUTOFINE FILTERS & SEAL LTD. ………………PLAINTIFF

VERSUS

PETER GITU GICHUKI

T/A PETER BIRDS INVESTMENT……………………DEFENDANT

R U L I N G

This is an application brought under the provisions of section 3A and 79G of the Civil Procedure Act and Rule 55 of the Auctioneers Rules 1997. It seeks the following orders that there be stay of further execution in Eldoret CMC. Misc. Civil Application No. 78 of 2996 and the Respondent be restrained from further execution pending the hearing and determination of the application; there is no decree capable of execution in the said Eldoret CMC. Misc. Civil Application No. 78 of 2006 and the warrants of attachment and sale, the proclamation and all or any steps taken to execute be declared illegal, null and void and they be set aside, the applicant be granted leave to file appeal out of time against the decision dated 13/04/2007 made in Eldoret CMC. Misc. Civil Application No. 78 of 2006.

The grounds the application is based on are that the ruling was made without notice and knowledge of the applicant who became aware of the same on 2/5/2007 when auctioneers visited the applicant’s premises to proclaim an attachment.That there is no decree issued and there cannot be execution.That the time by which an appeal could be filed lapsed and leave is necessary.Counsel for the applicant swore the affidavit in support of the application.

The Replying Affidavit sworn in opposition to the application stated that the application was brought in bad faith with the sole intention of denying the Respondent payment for work already undertaken and that there was notice for the delivery of the Ruling and there are no good grounds for appeal.

Both counsel submitted in support of their rival positions.

I have considered the application, submissions by both counsel and the relevant law.There was no proof given to court that Ruling of the 13/04/2007 was delivered after due notice to all the parties in the application.Nothing was given to court to prove that the Applicant was aware of the said Ruling prior to the execution date on 3/5/2007 and merely did nothing about securing its position.There was not produced to court any decree that was being executed on 3/5/2007. The Respondent in fact did acknowledge that no decree was ever drawn.It is trite law that there cannot be an execution of a decree that does not exist.Without more and on this ground alone the application would succeed.But there is more.The execution was based on a certificate of costs.A certificate of costs is incapable of being executed.And no warrants of attachment can in law issue on the basis of a certificate of costs where there has not issued a decree.Everything that could go wrong went wrong in the execution process in this case.I find as a fact that the applicant was not notified of the date of 13/04/2010 as the Ruling delivery date.That Ruling was delivered in the absence of the applicant or its counsel both of whom did not know that the same was being delivered.Order XX of the Civil Procedure Rules as relates to execution was ignored in its totality.By the time the Applicant knew of the Ruling the time for filing appeal was long gone.The applicant cannot have field appeal against a ruling whose existence and contents it knew nothing about.For these reasons the application succeeds in its entirety and I order as follows;-

That the warrants of attachment and sale issued herein are illegal and a nullity not capable of execution and the same are hereby set aside as such.That time for filing appeal by the appellant is hereby extended and such appeal shall be filed within 21 days of this date.The applicant will have the costsof this application.

It is so ordered.

DATED SIGNED AND DELIVERED AT ELDORET THIS 28TH DAY OF JULY,2010.

P.M. MWILU

JUDGE

In the presence of;

Absent – Advocate for Applicant

Absent – Advocate for Defendant

Andrew Omwenga – Court Clerk

P.M. MWILU

JUDGE