[2023] KEHC 18800 (KLR)
The court found that no judgment had been entered in CMCC No E6247 of 2020, and therefore, the execution proceedings commenced against the applicant were erroneous. The absence of a judgment meant there was no legal basis for execution. Consequently, the court set aside the execution proceedings and directed that...
Source-derived case information.
- Citation
- [2023] KEHC 18800 (KLR)
- Parties
- Applicant: Directline Assurance Co Ltd; Respondent: Joseph Onyango Obura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application E033 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Execution Proceedings
- Outcome
- Application allowed. Execution proceedings set aside. Matter to be set down for hearing.
- Judges
- AN Ongeri
- Legal Topics
- Execution Proceedings, Striking Out Defence, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Directline Assurance Co Ltd
Applicant
Joseph Onyango Obura
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Execution Proceedings
Legal Issues
- 1 Whether execution proceedings could lawfully commence where no judgment had been entered.
- 2 Whether the execution proceedings against the applicant were erroneous and liable to be set aside.
Ratio Decidendi
The court found that no judgment had been entered in CMCC No E6247 of 2020, and therefore, the execution proceedings commenced against the applicant were erroneous. The absence of a judgment meant there was no legal basis for execution. Consequently, the court set aside the execution proceedings and directed that the matter be set down for hearing before the trial court.
Court Disposition
Application allowed. Execution proceedings set aside. Matter to be set down for hearing.
Orders
- The execution proceedings commenced against the applicant are set aside.
- CMCC No E6247 of 2020 to be set down for hearing.
Full Case Text
Judgment text and source record
20 paragraphs
Directline Assurance Co Ltd v Obura (Civil Miscellaneous Application E033 of 2022) [2023] KEHC 18800 (KLR) (Civ) (13 June 2023) (Ruling)
Neutral citation: [2023] KEHC 18800 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Miscellaneous Application E033 of 2022
AN Ongeri, J
June 13, 2023
Between
Directline Assurance Co Ltd
Applicant
and
Joseph Onyango Obura
Respondent
Ruling
1. The court delivered a ruling on February 24, 2023 directing the Executive Officer, Milimani Commercial Courts to avail CMCC No E6247 of 2020 for perusal and directions.
2. I have perused the said file and I find that on June 4, 2021, the trial court dismissed the application dated January 18, 2021 which was seeking striking out of the defence.
3. I find that no judgment was entered and therefore the execution proceedings commenced against the appellant are erroneous.
4. I set aside the erroneous execution proceedings and direct that CMCC No E6247 of 2020 be set down for hearing.Orders accordingly.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 13TH DAY OF JUNE, 2023. ………………………A. N. ONGERIJUDGEIn the presence of:……………………………. for the Applicant……………………………. for the Respondent