[2022] KEHC 409 (KLR)

Directline Assurance Co. Limited v Obura (Miscellaneous Application E033 of 2022) [2022] KEHC 409 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 409 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Application E033 of 2022

JK Sergon, J

May 6, 2022

Between

Directline Assurance Co. Limited

Applicant

and

Joseph Onyango Obura

Respondent

Ruling

1. The applicant in the present instance brought the Notice ofMotion dated 24th January, 2022 supported by the grounds presented on its face and the facts deponed to in the affidavit of Kelvin Ngure.

2. In the aforesaid motion the applicant sought for the following orders:i.Spent.ii.Spent.iii.Spent.iv.THAT this Honourable Court be pleased to call up file no. Nairobi CMCC NO. E6247 OF 2020 of the Chief Magistrate’s Court at Milimani and order that the warrants of attachment and warrants of sale of movable property issued to Hudlink Auctioneers on January 18, 2022 be recalled, cancelled and declared void in exercise of the court’s inherent jurisdiction to redress irregularities on the record ex debito justitiae.v.THAT this Honourable Court be pleased to order the unconditional release of the applicant’s movable assets as listed in the proclamation notice dated January 19, 2022 and subsequently attached by Hudlink Auctioneers.vi.THAT the respondent be ordered to pay the costs of the application.

3. To oppose the Motion, advocate Edna Kanana swore a replying affidavit on 8th February, 2022 to which advocate Lenin Owuor Awino rejoined with a supplementary affidavit sworn on March 7, 2022 on behalf of the applicant.

4. The Motion was canvassed through brief oral arguments where the parties’ advocates largely relied on the averments made in their respective documents, which I have considered together with the grounds featuring on the face of the Motion; and the affidavits both supporting and resisting the same.

5. A brief background of the matter is that the respondent instituted Nairobi CMCC no. E6247 of 2020 (“the declaratory suit”) against the applicant before the subordinate court and sought for a declaratory order that the applicant is bound to fully satisfy the decretal sum arising out of Nairobi CMCC no. 4529 of 2013 (“the primary suit”).

6. The applicant filed a statement of defence to challenge the averments made in the plaint filed in the declaratory suit.

7. Subsequently, the respondent filed the application dated 18th January, 2021 and sought to have the applicant’s statement of defence struck out and for judgment to be entered as prayed in the aforementioned plaint. The application was opposed by the applicant.

8. Going by the record, a ruling was delivered by the subordinate court on the aforementioned application, followed by execution proceedings by the respondent and which have precipitated the Motion now before this court.

9. Returning to the instant Motion, it is noted that the orders sought therein touch on the calling of the file in the declaratory suit and the cancellation of the warrants of attachment and sale issued to Hudlink Auctioneers (“the auctioneers”) and consequently, the unconditional release of the applicant’s goods already attached. I will address the said issues contemporaneously.

10. On the one part, the applicant by way of its deponent Kelvin Ngure, states that by way of the ruling delivered on June 4, 2021 the subordinate court dismissed the respondent’s application dated 18th January, 2021 upon holding that the applicant’s statement of defence had established triable issues which would necessitate a full trial of the suit and which suit is still pending before the subordinate court.

11. The applicant further states that in contravention of the aforesaid ruling, the respondent pursuant to a purported decree issued in his favour, illegally took out warrants of attachment and sale, and instructed the auctioneers to proclaim the applicant’s movable property.

12. The applicant is of the view that the warrants of attachment and sale issued are therefore invalid and ought to be cancelled by this court in exercise of its supervisory jurisdiction pursuant to Article 165 (6) and (7) of the Constitution.

13. In retort, advocate Edna Kanana states that the respondent’s application seeking to have the applicant’s statement of defence struck out was allowed by the subordinate court and hence the execution proceedings are proper and lawful.

14. The advocate further states that the ruling in question which was availed by the applicant bore no case number and was a faint copy and therefore difficult to read.

15. In retort, Lenin Owuor Awino states in his supplementary affidavit that the ruling in question, though handwritten, was clear in terms of the order declining to strike out the applicant’s statement of defence and that the applicant has not been able to obtain a typed copy of the ruling. The deponent also states that the copy of the ruling annexed to the instant Motion is legible enough.

16. Upon my perusal of the record, it is apparent that the parties herein have varied versions as to the order which was made in the ruling delivered by the subordinate court on 4th June, 2021.

17. Upon my further perusal of the record, I observed that the handwritten copy of the aforementioned ruling annexed to the instant Motion is illegible and I am therefore unable to ascertain the true position regarding the order made therein.

18. In view of the foregoing circumstances, I am unable to adequately make a determination on the instant Motion.

19. Consequently, the Motion dated January 24, 2022 is hereby held in abeyance pending the following orders:i.The Executive Officer-Milimani Commercial Courts shall arrange for a certified typed copy of the ruling delivered on 4th June, 2021 in CMCC no. E6247 of 2020 to be availed to this court within 14 days from today.ii.The Executive Officer shall avail the file in CMCC no. E6247 of 2020 to this court within 20 days from today.iii.This file to be mentioned before this court on 30/5/2022 to confirm compliance.iv.Interim orders extended to last until then.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:……………………………. for the Applicant……………………………. for the Respondent