[2004] KEHC 2084 (KLR)
The court found that the application for execution was improperly before it because it did not comply with the mandatory procedural requirements set out in the Civil Procedure Rules. Specifically, the application was not made in the prescribed form, and the proper officer to deal with such applications is the...
Source-derived case information.
- Citation
- [2004] KEHC 2084 (KLR)
- Parties
- Plaintiff: George Neil Baird & Another; Defendant: Frederick Joses Kinyua & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6587 of 1991
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- application dismissed
- Legal Topics
- Execution of Decrees, Jurisdiction of Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Neil Baird & Another
Plaintiff
Frederick Joses Kinyua & Another
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to entertain the Notice of Motion dated 28th November 2003 as drawn and filed.
- 2 Whether the application for execution lies in law.
- 3 Whether the judgment sought to be enforced is executable and whether respondents can be called upon to show cause.
Ratio Decidendi
The court found that the application for execution was improperly before it because it did not comply with the mandatory procedural requirements set out in the Civil Procedure Rules. Specifically, the application was not made in the prescribed form, and the proper officer to deal with such applications is the Registrar, not the judge. As a result, the court lacked jurisdiction to entertain the application as drawn and filed. The court therefore allowed the preliminary objection and dismissed the application as an abuse of the process of the court, awarding costs to the respondents.
Court Disposition
application dismissed
Orders
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
CIV CASE 6587 OF 91
GEORGE NEIL BAIRD & ANOTHER …………………………………. PLAINTIFF
VERSUS
FREDERICK JOSES KINYUA & ANOTHER ………………………….. DEFENDANT
RULING
I have considered the preliminary objection raised herein by Counsel for the Respondents. The same raises 3 points of law namely that
1) This court has no jurisdiction to entertain the Notice of Motion dated 28 th November 2003 as drawn and filed.
2) The application does not lie in law
3) The judgment sought to be enforced is not executable and the respondents cannot be called upon to show cause.
This application has been brought under Order 21 Rule 1 Sub rule (a) seeking firstly an order requiring the Defendant to show cause why execution of a decree passed against them over 10 years ago should not be executed against them.
Secondly such other orders as the court may deem fit, just and expedient to grant and for costs to be provided for. The procedure for application for execution is provided for in Order XXI Rule 6 which requires that a person seeking to execute a decree should apply to the court and such application shall be made in accordance with Form No. 5 of Appendix D of the Civil Procedure Rules. Order XXI Rule 18 (1) (a) is to be invoked where such application is made, inter alia, in respect of a decree which is over one year old. The Notice to show cause why execution should not issue is issued by the court also in the form prescribed under the Rules, specifically Form No. 6 of Appendix D. Under Order XLVIII Rule 5 (b) (x) the proper person to deal with application of this nature is the Registrar of the High Court. I allow the preliminary objection and hold that this application is improperly before me and is in fact an abuse of the process of the court. In the circumstances it is not necessary for me to deal with the third objection. The application is hereby dismissed with costs to the Respondents.
M.G. Mugo
Ag. Judge
20th February 2004