[2021] KEHC 7295 (KLR)
The court held that while the applicant did not strictly comply with the procedural requirement of using Form 14 under Order 22 Rule 6 of the Civil Procedure Rules, such non-compliance was not fatal to the application as no prejudice was occasioned to the respondent. The court found that the applicant was entitled...
Source-derived case information.
- Citation
- [2021] KEHC 7295 (KLR)
- Parties
- Applicant: CM Construction (EA) Limited; Respondent: Nine Sisters Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E453 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Warrant of Attachment and Prohibitory Order
- Outcome
- application allowed
- Judges
- B Ojoo
- Legal Topics
- Arbitration Award Enforcement, Execution of Decree, Attachment of Immovable Property, Prohibitory Orders, Auction of Property, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
CM Construction (EA) Limited
Applicant
Nine Sisters Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Warrant of Attachment and Prohibitory Order
Legal Issues
- 1 Whether the applicant is entitled to a prohibitory order attaching the respondent's immovable properties in execution of an arbitral award.
- 2 Whether failure to use Form 14 of Appendix A of the Civil Procedure Rules is fatal to the application.
- 3 Whether the court has jurisdiction to entertain the application despite procedural irregularities.
Ratio Decidendi
The court held that while the applicant did not strictly comply with the procedural requirement of using Form 14 under Order 22 Rule 6 of the Civil Procedure Rules, such non-compliance was not fatal to the application as no prejudice was occasioned to the respondent. The court found that the applicant was entitled to a prohibitory order attaching the specified immovable properties to secure satisfaction of the arbitral award, and that the process of sale and settlement of terms should proceed before the Deputy Registrar. The court exercised its jurisdiction to grant the orders sought, emphasizing that the purpose of the rules is to facilitate justice and not to defeat substantive rights...
Court Disposition
application allowed
Orders
- A prohibitory order is issued prohibiting the respondent from transferring or interfering with the specified properties.
- The applicant to proceed with settlement of terms of sale before the Deputy Registrar in accordance with the law.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
MISC. APPLICATION NO. E 453 OF 2019
IN THE MATTER OF THE ARBITRATION ACT 1995 & THE ARBITRATION RULES 1997
AND
IN THE MATTER OF ENFORCEMENT OF AN ARBITRATION AWARD
BETWEEN
CM CONSTRUCTION (EA)
LIMITED.................................................APPLICANT/DECREE HOLDER
Versus
NINE SISTERS LIMITED..............RESPONDENT/JUDGMENT DEBTOR
R U L I N G
1. Before me is a Motion on Notice dated 24/11/2020 brought under sections 1A, 1B, 3 and 3A of Civil Procedure Act, Order 22 Rule 48 and Order 51 Rule of the Civil Procedure Rules.
2. The applicant seeks a Warrant of Attachment by way of a Prohibitory Order prohibiting the respondent/judgment debtor from transferring or interfering in any manner with the following properties (hereinafter referred to as ‘the suit properties’), to wit,Title Number Miti Mingi/Mbaruk Block 8/1424, 1496-1499, 1500-1507, 1523, 1525, 1546, 1557-1561, 1565, 1575, 1579, 1583, 1584, 1589-1592, 1600-1602 and 1614 (Kianjoya ‘D').
3. The application was predicated upon the averments contained in the supporting affidavit of Manji Ravji sworn on even date. It was contended that by a consent dated 21/10/2020, the decretal sum of Ksh.130,000,000/- together with the auctioneer’s fees was to be recovered by way of attachment and sale of the suit properties. That the applicant had since instructed the auctioneers to attach and sell by public auction or private treaty the said 35 properties. That it was necessary for the orders sought to be granted to effect the consent order aforesaid.
4. The respondent opposed the application vide a Notice of Grounds of Opposition dated 15/12/2020. It was contended that the procedure applicable in attaching immoveable properties is provided for under Order 22 Rule 6 of the Civil Procedure Rulesand not by way of the present application.
5. The parties have filed their respective submissions which the Court has considered.
6. Order 22 of the Civil Procedure Rules provides for execution of decrees and orders. Rule 6 thereof provides: -
“Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A”
7. Rules 7, 9 and 10 of Order 22 provide how the application for execution is to be made and the particulars to be included as well as the mode of execution required.
8. Order 22, Rule 48 states:-
“Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property”.
9. The above provisions set out the procedure and format to be followed by a decree holder in execution of a decree. The present application is not in accordance thereof. Indeed, the application is supposed to be dealt with by the Deputy Registrar in his/her administrative quasi-judicial function.
10. The import of Order 22, rule 48 and 68 is that the court may make an order of attachment and sale of immovable assets in execution of a decree and such attachment will be complete and effective upon the registration of a prohibitory order halting any dealing with the judgment debtor’s property. All that is required is the filling of Form 14 in Appendix A of the Civil Procedure Rulesand lodging the same in the registry. The Deputy Registrar grants the orders if satisfied that the same is in order.
11. Be that as it may, this Court finds that it has jurisdiction to entertain the application. That failure to apply as provided for under Form 14 in Appendix A of the Civil Procedure Rulesis not fatal.
12. The Court finds that no prejudice has been occasioned by the failure to adhere to the procedure set out in Order 22 Rule 6. Only that the application has wasted this Court’s precious time. All that is sought is the attachment of the suit properties and thereafter the process of sale can commence before the Deputy Registrar where Settlement of Terms of sale in the normal manner will be undertaken. If the order is not granted, the suit properties may be sold or encumbered thereby prejudicing the applicant irreparably.
13. In ECO Bank Kenya Limited V Harvey Engineering Limited & 2 Others (2018)Eklr, the court attached the property owned by the judgment debtor in order to have it sold in a public auction in satisfaction of a decree.
14. In view of the foregoing, I allow the application as prayed. The applicant will take steps in accordance with the law on the Settlement of Terms of sale before the Deputy Registrar accordingly.
Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MAY, 2021.
A. MABEYA, FCI Arb
JUDGE