[2008] KEHC 1035 (KLR)
The court found that the judgment debtor failed to demonstrate sufficient medical or other grounds to justify the release of his passport and travel outside the jurisdiction. The risk to the decree holder of not recovering the decretal amount if the debtor left the country was deemed significant, especially given...
Source-derived case information.
- Citation
- [2008] KEHC 1035 (KLR)
- Parties
- Plaintiff: Fidelity Commercial Bank Ltd; Defendant: Tajdin Hussein
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 374 of 1998
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Release of Passport
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Enforcement of Judgments, Warrants of Arrest, Release of Passport, Judgment Debtor Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Fidelity Commercial Bank Ltd
Plaintiff
Tajdin Hussein
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Release of Passport
Legal Issues
- 1 Whether the judgment debtor is entitled to the release of his passport deposited in court.
- 2 Whether medical grounds or other circumstances justify allowing the judgment debtor to travel abroad before settling the decree.
- 3 Whether the decree holder would be prejudiced if the judgment debtor is allowed to leave the jurisdiction.
Ratio Decidendi
The court found that the judgment debtor failed to demonstrate sufficient medical or other grounds to justify the release of his passport and travel outside the jurisdiction. The risk to the decree holder of not recovering the decretal amount if the debtor left the country was deemed significant, especially given the debtor's failure to pay any installments or execute the required bond. The court held that the responsibility to settle the judgment rests with the debtor, and the mere possibility of indemnity from a third party does not suffice. Accordingly, the application for release of the passport was dismissed to protect the interests of the decree holder.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for release of the passport is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 374 of 1998
FIDELITY COMMERCIALBANK LTD………...............PLAINTIFF
VERSUS
TAJDIN HUSSEIN…..…………….........…………… DEFENDANT
RULING
Chamber Summons dated 22. 05. 2007 seeks orders to lift and set aside warrants of arrest issued against the judgment debtor and that the debtors passport be released to him. The only prayer outstanding is for the release of his passport.
The application is supported by affidavit of the debtor sword on 22. 05. 2007. The debtor swears that he solely relies on the goodwill for his daily survival of his children and that he suffers from chronic abdominal pain and that a Dr. Alaudin Shariff M.d. has recommended that he needs further specialized treatment abroad. Exhibit “THZ 1” is a certificate issued by that doctor.
The debtor states that his daughter in Canada will receive him and therefore he needs to travel there. He is a citizen of Kenya aged 63 years. He further says his passport was deposited in court by order of Court and he applies for its release to enable him to ravel. He confirms that he will return immediately after treatment.
The application is opposed by judgment creditor who fears that if the passport is released the Applicant my not return since his children are abroad. The Respondent also believes that the health of the Applicant is not bad. There are two medical reports of two years ago and it is shown his health is not bad at all.
There is evidence that the Applicant offered to clear the debt by monthly installments of Kshs.20,000/= each, but that he has never paid a single installment. It is also stated that he never executed bond of Kshs.1 million as ordered. There is also evidence that a third party has been added to the suit after the compliance with relevant rules. Hon. Justice Azangalala entered judgment for the defendant against the third party for indemnity in favour of the debtor.
The Plaintiff’s judgment against the Defendant has to be settled by the Defendant. It is for him to claim for indemnity from the third party. It is not enough to allege that a third party will pay the decree holder. Upon considering all the above, I am convinced that the decree holder would stand at risk of not recovering the decretal amount should the Respondent judgment debtor was to leave the country before settling this decree.
I find no reason either on medical grounds or otherwise to warrant enabling the Applicant to travel out of the country, the jurisdiction of this court.
The application is dismissed with costs to the Respondent.
Orders accordingly.
DATED this 3rd day of November 2008.
JOYCE N. KHAMINWA
JUDGE