[2022] KEHC 9852 (KLR)

Gari & 2 others v Kuria (Civil Appeal 382 of 2018) [2022] KEHC 9852 (KLR) (Civ) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9852 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 382 of 2018

DAS Majanja, J

July 14, 2022

Between

Morris Gari

1st Appellant

Dan Onyongo Odeyo

2nd Appellant

Kantech Steel Fabricators

3rd Appellant

and

Cyrus Mugwe Kuria

Respondent

(Being an appeal from the ruling and order of Hon. K. I. Orenge, SRM dated 9th August 2018 in Milimani Magistrates Civil Case No. 3814 of 2014)

Judgment

1. The facts leading to this appeal are not in dispute. The Respondent, who was the Plaintiff before the Subordinate Court, filed suit against the Appellants for general and special damages. As the Respondents did not enter appearance and or file defence, the court entered interlocutory judgment against them. The matter proceeded for formal proof. The court delivered judgment on 11th January 2017 awarding the Respondent KES. 350,000. 00, costs and interest. The court rejected the Appellant’s application to set aside the judgment by a ruling dated 20th September 2017.

2. In due course, the Respondent filed the Notice of Motion dated 1st March 2018 seeking an order directed at the Clerk, Nairobi City County Assembly to withhold and remit to the Respondent’s advocates one-third of 1st Appellant’s salary on a monthly basis until the decree is satisfied and settled. The application was supported by the Respondent’s deposition in which he stated that the 1st Respondent was a member of the Nairobi City County Assembly. He stated that the auctioneer carried out an investigation which concluded that the Appellants did not have any attachable assets.

3. In response to the application, the 1st Appellant in his deposition stated that the auctioneers issued a proclamation and carried out an attachment as evidenced by the proclamation and auctioneers own letter confirming as much hence there was no reason to proceed with further attachment of his salary. He accused the Respondent of lying to the court and blackmailing him as he was a Member of the County Assembly.

4. The trial magistrate dismissed the application noting that the decree remained unsettled and that the 1st Appellant had not shown any willingness to settle the decretal amount hence the application was merited and the same was allowed. It is this ruling and order attaching one third of the 1st Respondent’s salary that has precipitated this appeal.

5. The grounds of appeal are set out in the Memorandum of Appeal dated 15th August 2018. The gravamen of the appeal is that the trial magistrate failed to consider the fact that the Respondent misled the court into believing that the 1st Appellant had frustrated the sale of the attached moveable property. They accused the trial magistrate of failing to consider the substance in the 1st Appellant’s affidavits on record and for allowing execution against him only and not the 2nd and 3rd Appellants.

6. This appeal was canvassed by way of written submissions. In their written submissions, the Appellants dwell at length on the judgment entered against them. I agree with the Respondent that the judgment and the order dismissing the application to set aside are not the subject of this appeal hence I will disregard this aspect of the Appellants’ submissions.

7. The issue in this appeal is whether the execution ordered by way of attachment of one-third of the 1st Appellant’s salary was regular. The Appellants complain that the Respondent was allowed to execute twice against the 1st Appellant despite the fact that the auctioneer’s firm had already attached and sold this motor vehicle registration number KBX 563M. The Respondent rejects this submission and contends that the Appellant’s allegations are unsubstantiated and without any merit.

8. As the first appellate court, I have considered the record and the ruling appealed from and I find as follows. In the application before the court, the Respondent stated that it wished to proceed with execution by way of attachment of the salary because it was unable to trace the Appellants’ assets. It is true that the auctioneer, Garam Investments Auctioneers, filed a certificate dated 26th April 2017 stating that he proceeded to the Appellant’s premises and proclaimed motor vehicle registration number KBX 563M in the presence of the 1st Appellant. In a letter dated 26th April 2017 to the Appellant’s advocates, he stated that he would proceed to carry off and auction the motor vehicle on the expiry of 7 days. There is no indication that the motor vehicle was ever carried away and indeed sold. It is on this basis that the Respondent applied for execution afresh and the warrants were issued to Kangethe Enterprises Auctioneers. The 1st Appellant, in his affidavits, does not contend that the motor vehicle was indeed sold. In his further affidavit, the 1st Appellant states despite the proclamation, “nothing to date has taken effect.” It is therefore clear that the execution was not completed by sale of the motor vehicle. Nor did the 1st Appellant provide such evidence before the trial court.

9. Since the initial attachment did not take place, the Respondent, as Judgment-Creditor, had the right to select and proceed with any other mode of execution as he deemed fit (see Tripple Eight Construction Limited v China Petroleum Limited and Another ML HC COMM No. 186 of 2010 [2020] eKLR). The modes execution provided in section 38 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) as read with Order 22 of the Civil Procedure Rules are not mutually exclusive. The Judgment-Creditor is entitled to proceed with any mode of execution that is suitable in the circumstances and as long as the judgment debt is due, he may adopt one mode over another provided the proper procedure is followed. The attachment of moveable assets having been unsuccessful, the Respondent was entitled to proceed with attachment of the Judgment-Debtor’s salary.

10. I also do not see any basis for complaining that the trial magistrate did not consider execution against the 2nd and 3rd Appellants. The judgment against the Appellants was joint and several meaning that all the Appellants were collectively and individually liable to the full extent of the decree (see Republic v Permanent Secretary in Charge of Internal Security – Office of the President and Another ex-parte Joshua Mutua Paul [2013] eKLR, Gedion Muthoka Muasya v Urbanus Mulele Musyoki and Another [2019] eKLR). Where the judgment is joint and several, the Judgment Creditor has the right to elect against whom to execute. The Judgment Creditor, on the other hand, cannot resist execution against it merely on the ground that execution ought to have been directed at its co-Judgment-Debtors.

11. In an appeal against the exercise of discretion by the trial court, the appellate court will not interfere with the decision of the trial court unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been an injustice (see Mbogo v Shah [1968] EA 93 and United India Insurance Co. Ltd and Others v East African Underwriters (Kenya) Ltd NRB CA Civil Appeal No. 36 of 1983 [1985] eKLR).

12. Having considered the record and submissions and for reasons I have set out above, I do not find any error in the decision of the trial magistrate that warrants interference.

13. The appeal is dismissed with costs to the Respondent. The costs of the appeal are assessed at KES. 30,000. 00.

SIGNED AT NAIROBID.S. MAJANJAJUDGEDATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JULY 2022. J. K. SERGONJUDGE_______________ instructed by Rabala and Company Advocates for the Appellants.____________________ instructed by Kiamah Kibathi and Company Advocates LLP for the Respondent.HCCA NO. 382 OF 2018 JUDGMENT Page 3