[2003] KEHC 679 (KLR)
The court found that the 1st judgment debtor was released from civil jail not because the decree was satisfied or the statutory period expired, but pursuant to a consent order with a default clause. Since the 1st judgment debtor defaulted on the terms of the consent, the decree holder was entitled to seek further...
Source-derived case information.
- Citation
- [2003] KEHC 679 (KLR)
- Parties
- Plaintiff: Chepkorir Sego; Defendant: Julius Kiprono Bii; Defendant: Unknown (2nd Defendant)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2766 of 1995
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside or Review Committal Order
- Outcome
- application dismissed with costs to the decree holder/respondent
- Judges
- RCN Kuloba
- Legal Topics
- Execution of Decrees, Civil Jail, Review of Orders, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chepkorir Sego
Plaintiff
Julius Kiprono Bii
Defendant
Unknown (2nd Defendant)
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside or Review Committal Order
Legal Issues
- 1 Whether the 1st judgment debtor can be recommitted to civil jail under the same decree after a prior release by consent.
- 2 Whether section 42(2) of the Civil Procedure Act bars further committal in these circumstances.
- 3 Whether there is sufficient reason to review or set aside the Deputy Registrar's order of 19.9.02.
Ratio Decidendi
The court found that the 1st judgment debtor was released from civil jail not because the decree was satisfied or the statutory period expired, but pursuant to a consent order with a default clause. Since the 1st judgment debtor defaulted on the terms of the consent, the decree holder was entitled to seek further execution, including recommittal to civil jail. Section 42(2) of the Civil Procedure Act did not apply because the release was conditional and the decree remained unsatisfied. There was no error on the face of the record or sufficient reason to review or set aside the Deputy Registrar's order of 19.9.02. The application was therefore dismissed with costs to the decree holder.
Court Disposition
application dismissed with costs to the decree holder/respondent
Orders
- The application to set aside or review the Deputy Registrar's order of 19.9.02 is dismissed.
- Costs awarded to the decree holder/respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2766 OF 1995
CHEPKORIR SEGO ……………………………………………………..PLAINTIFF
VERSUS
JULIUS KIPRONO BII & ANR ………………………………………DEFENDANTS
R U L I N G
The application by the JD/Applicants dated 9/11/02 seeks to have the Deputy Registrar order of 19. 9.02 set aside or reviewed. The order made on 19. 9.02 is that the 1st JD has to pay Kshs.100,000/= to DH by 17. 10. 02 failing which he would be committed to civil jail and the JD now argues that the order was a mistake because under S.42(1)(b)(iii) as held with section 42(2) CPA he cannot be committed to civil jail again having served a jail term there before in the same decree and was released on 23. 8.01 on request by DH.
The application is opposed on grounds that the 1st JD never served the full 6 months jail because a consent was reached between the 1st JD and DH and it was filed in court on 23. 8.01 and that it had a default clause and since the 1st JD defaulted that is why the DH applied for another NTSC and counsel submits that S 42(2) CPA does not apply here.
It is not in dispute that the 1st JD had been committed to civil jail and was released vide consent order filed by both 1st JD & DH on 23. 8.01. Under S 42 1(b) a JD who is imprisoned can be released for defence before the 6 months are over if the sum mentioned in the warrant is paid to the office in charge of the person or if the decree is fully satisfied and the court so orders or, if the request of the 1st JD was only released from detentive when he signed a consent and bound myself to pay the decretal sum by a certain date. There is a default clause in the consent that execution would issue if he failed to pay. He failed to pay as agreed in the consent and that is why they came back to court on 19. 9.02 following order this court made orders of payment. Although the DH consented to the 1st JD release from the prison it was on condition. He had not satisfied the decree, DH had not failed to pay the subsistence S 42(2))can not apply S 42(1) because 1st JD has released because of the consent he signed which led conditions that he did not fulfill. The DH on his own volition had not just decided to have the 1st JD released from prison. I do find that there is no some of the face of the record to justify and review of the orders of 9. 9.02 now is that good reason to warrant or setting aside of the same. It stands this application is dismissed with costs to the DH/Respondent. I note that this application should have been only in respect of 1st JD not 2nd who has been arrested.
R. WENDOH
SENIOR DEPUTY REGISTRAR
COURT:
Ruling delivered
Mr. Muriuki for Mr. Onyango for applicant
C.K. NJAI
PRINCIPAL DEPUTY REGISTRAR
5. 2.2003
Coram: R. Kuloba, J
Court clerk – Ann
Mr. Onyango for applicant
ORDER:
Leave to act for the first defendant is granted.
R. KULOBA
JUDGE
5. 2.2003