[2022] KEHC 13862 (KLR)

Chepkwony v Chetambe & another (Civil Suit 15 of 1995) [2022] KEHC 13862 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13862 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Suit 15 of 1995

PJO Otieno, J

October 7, 2022

Between

Wilson K. Chepkwony

Plaintiff

and

Moses Chetambe

1st Defendant

Chetambe Simba Limited

2nd Defendant

Ruling

1. By a notice of motion dated and filed in court on January 25, 2022, the judgment debtor/applicant seek in the main and substantively an order and declaration that the executor of the decree dated February 1, 1995 is illegal for the same has become stale and barred from enforcement by dint of the Limitation of Actions Act, Cap 22.

2. There was also a prayer for leave to the firm of M. Kiveu Advocate to come on record for the defendant.

3. The grounds given to premise the application was mainly that the decree has remained unexecuted for over 20 years and that the latest attempt to execute the same is contrary to law for being barred. On need to change counsel, it was contended that the former advocate had been disbarred and was unable to continue action.

4. Those grounds were regurgitated in the affidavit in support sworn by the applicant it being reiterated that a decree aged 20 years cannot be executed, litigation must come to an end and that no prejudice would be occasioned to the plaintiff if leave is granted to change counsel.

5. The application was opposed by the plaintiff/decree holder on the basis of the replying affidavit sworn on February 3, 2022 whose gist is that the application is inordinately late, that the defendant has always been aware of the case and the decree but has always strived designed schemes to avoid payment and court attendance forcing the decree holder to resort to use of police including being committed to civil jail. He then exhibits applications for execution and warrants of attachment and sale as well as warrants of arrest to show that the process of execution has been ongoing hence the decree has not become stale. The defendant was faulted for making no attempt at settling the decree and for using change of advocates as a tactic for delay which has resulted in the decree continuing to grow by application of interests. He deems the application a deliberate attempt to defeat the decree yet the judgment debtor is a man of good means able to pay it on go but is keen to evade obligations hence the application deserves dismissal.

6. On the March 30, 2022 it was directed by the court that the application be canvassed by way of written submissions, pursuant to which directions, both sides filed written submissions dated 7th and June 8, 2022 respectively.

7. I have had the benefit of reading the submissions as well as the papers filed in support and opposition to the requests for leave to change advocate and to declare the decree stale and I take the view that the issues for determination are two; whether an opponent can stand on the way of his adversary and oppose his right to change counsel and secondly, but more substantially, whether the decree has remained unexecuted for a period in excess of twelve (12) years and has thus become incapable of enforcement.

8. On the first issue, I appreciate the requirement of order 9 rule 9 to be proposed to protect an advocate with a lien over a client’s file. It is a dispute between an advocate and his client and never a dispute between the parties to that litigation. Accordingly, an adversary cannot stand on the way of his opponent and defeat his right to be represented by Counsel of his own choice. Here the person to object to any chance could only be Laban Anzinya and Company Advocates who has not lodged and opposition. In the absence of such opposition, I do allow prayer 2 of the application as prayed.

9. On the prayer to declare the decree stale and incapable of enforcement, I interpret the provisions of section 4 (4) of the Limitation of Actions Act to say that for a decree to become incapable of enforcement, no steps must have been taken towards its enforcement for a continuous period of twelve (12) years. If, like in all limitations, a step is taken within 12 years, the period of computation terminates and commences afresh. It is the commencement of the process of execution which determines the date the computation of time under Section 4(4).

10. In Jestimure Simmenyi –vs- Samson Sichangi [1997] eKLR the court said:-“Therefore the time starts running on the date of the Judgment and stopped running when the application for execution was made.”

11. Interpretation that was apparently adopted by the Court in Godfrey Okumu Ajuang –vs- Nicholas Opinya[2017] eKLR where the court said:-“I am of the view that a demonstrated action by the plaintiff to realise the decree before expiry of the limitation period would falls within the meaning of an action contemplated under the act and should therefore be taken into account. a contrary determination would have the effect of allowing a party to benefit from a process he may defeat by frustrating a legitimate decree holder.”

12. The perusal of this file discloses that by the April 23, 1997, before 12 years could lapse, there had been an application for execution and a warrant of attachment and sale was issued. That warrant attracted an application for stay of execution dated August 7, 1997 which came before Court on the September 2, 1997 and on other occasions thereafter but was never prosecuted to conclusion till the 7/4/2003 when the Judgment debtor was presented to court by warrants of arrest and released on bond to enable him avail evidence of attachment. Further proceedings show that way after, attempts of execution was taken with equal number of resistance by the defendant. I have therefore seen notes by the deputy registrar and the Judge consistently for the years 2003, 2004, 2005, 2016, 2017, 2020 and 2021. The record tells me that the decree holder did not go to sleep but was actively pushing the enforcement of the decree but without much success courtesy of resistance by the Judgment debtor. From the records of the file, there is no demonstration that the decree has ever left unpursued for the statutory period of 12 years. It cannot be said to have become unenforceable.

13. In coming to this conclusion, I have not ignored but read and fully appreciated the decision in Danson Muriithi Ayub –vs- Evans Muthamo Murokowhere the Court decreed the Judgment stale because for 12 years no steps had been taken to enforce the Judgment. Not even a decree had been drafted, approved and issued as demanded by law.

14. The Court is however persuaded by the reasoning in Hudson Moffat Mube –vs- Settlement Fund Trustees [2013] eKLR where the Court said:-“The expression, “an action may not be brought upon a Judgment after the end of twelve years from the date on which it was delivered .........” means that unless an application has been brought for enforcement of the Judgment and has been completed and or the same has not been concluded by the time the 12 years period expires, no fresh action for enforcement of the Judgment can be brought after the expiry of 12 years from the date of delivery of the Judgment.”

15. That decision when applied to the fact of this case, there having been attempts at execution within 12 years, there was no continued inaction by the decree holder for a period of twelve years and the decree remains valid and due for execution as pursued by the decree holder.

16. It thus follows that the application dated January 25, 2022 is devoid of merits and it is therefore dismissed with costs.

17. Let the file be placed before the deputy registrar on November 9, 2022 to enable the business that was derailed on the December 1, 2021 be dealt with.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF OCTOBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Musundi for the Plaintiff/RespondentMr. Kiveu for the Defendants/ApplicantsCourt Assistant: Kulubi