[2022] KEHC 15367 (KLR)

Gitiba v South Nyanza Sugar Company Limited (Civil Suit 24 of 2015) [2022] KEHC 15367 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15367 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Suit 24 of 2015

RPV Wendoh, J

November 15, 2022

Between

Ngina Gitiba

Plaintiff

and

South Nyanza Sugar Company Limited

Defendant

Ruling

1. The twin applications for determination are dated July 13, 2020 and October 21, 2020. The application dated July 13, 2020 was filed by the defendant while the application dated October 21, 2020 was filed by the plaintiff. For the purposes of this ruling, Ngina Gitiba will be the plaintiff and South Nyanza Sugar Company Limited will be the defendant.

2. In the application dated July 13, 2020, the defendant seeks the following orders:-i.Spent.ii.Spent.iii.This application be treated as a suit, under section 34 (1) of the Civil Procedure Act, Cap 21. iv.One Nashon Kerati Muriri t/a M/S Muriri Auctioneers be enjoined hereto as a party, for the purposes of the hearing and determination of this motion, as relevant to the orders sought.v.The warrants of attachment of movable property in execution of decree for money and the warrant of sale of property in execution of decree for money dated and issued in this suit, on the plaintiff’s application for execution, to M/S Muriri Auctioneers on June 11, 2020 for recovery of KShs 69,556,427/= from the defendant, be recalled and annulled.vi.The attachment, on June 29, 2020, of the defendant’s sugar mill (the whole plant) and the defendant’s “other office equipment lying in the offices” by way of proclamation, by M/S Muriri Auctioneers, in execution of the warrants of attachment and sale of the defendant’s movable property dated and issued on June 11, 2020 towards recovering of Kshs 69,556. 427/= be lifted, forthwith for being illegal, irregular, oppressive and an abuse of due process.vii.The plaintiff and Nashon Kerati Muriri Auctioneer do pay the defendant damages for the unlawful, irregular and/or unjustified attachment of the defendant’s property.viii.The plaintiff bears the costs of the present execution proceedings as have been taken out against the defendant, including the Auctioneer’s costs, if any costs are lawfully due to him.ix.The plaintiff bears the costs of this application.

3. The application is anchored on the grounds set out on its face and the supporting affidavit of Maurice Omondi Ng’ayo the defendant’s Legal Service Manager/Ag Company Secretary.

4. Counsel deponed that on February 14, 2019, this court entered judgement for the plaintiff against the defendant for KShs 39, 476, 975/= as damages for breach of contract, interest and costs; that the costs of the suit are yet to be taxed nor has the plaintiff filed and served a bill of costs; that it is nearly a year and six (6) months since this court passed the decree; that the plaintiff applied through her firm of advocates for assistance in the execution of a decree dated May 6, 2019; that this court issued warrants of attachment and sale of the defendant’s movable property dated June 11, 2020 in accord with the application for execution of a decree of this court, dated May 6, 2019 and which warrants of attachment of sale were to be executed against the defendant to recover KShs 69,566,427/= made up of the following:-a.Principal Amount - KShs 39,476,975/=b.Taxed Costs - KShs 30, 088,452/=c.Further Costs - KShs 500/=d.Collection Fees - Kshs. 1,500/=Total - KShs 69,566,427/=

5. It was further deponed that the sum of KShs 30,088,452/= being executed as costs is not owed and it is fictitious; that before the warrants of attachment and sale of the defendant’s property dated June 11, 2020 were issued, no orders for execution as envisaged and provided for under section 38 (b) of the Civil Procedure Act and order 22 rule 13 (4) of the Civil Procedure Rules 2010 were made, as the parties were not heard on that application for execution, nor was execution allowed for that non - existent decree; that when the warrants of attachment and sale of the defendant’s property were issued on June 11, 2020, nearly sixteen (16) months had elapsed since February 14, 2019 when the real decree in this suit was passed; that the court was required under order 22 rule 18 (1) (a) of the Civil Procedure Rules, to issue a notice to the defendant to show cause why the decree should not be executed against it; that aside from the judgment having been entered in this suit over fifteen (15) months ago, the plaintiff’s application for execution was not made within a year from the date of the last order against the defendant against whom execution was applied for and therefore the warrants of attachment and sale dated and issued on June 11, 2020 to Muriri Auctioneers were issued by this court without jurisdiction and therefore null and invalid ab initio.

6. Further to the foregoing, it was deponed that on June 29, 2020 and in executing the defective and null warrants of attachment and sale, M/s Muriri Auctioneers attached the defendant’s sugar mill (whole plant) and “other office equipment in the offices” in execution of the decree; that the defendant’s sugar mill is the defendant’s essential tool of trade, necessary to perform the defendant’s primary trade/business of milling and selling sugar and the said mill is not liable to attachment in execution of any decree under section 44 (1) (ii) of the Civil Procedure Act; that the said attachment by way of proclamation and the intended sale are therefore irredeemable illegalities; that the execution of the decree is contrary to order 21 rules 7 (1) & (2) and 9 and order 21 rule 7 of the Civil Procedure Rules 2010.

7. Counsel further deponed that the intended sale of the defendant’s five (5) motor vehicles KBQ 944U, KBR 765U, KAN 117U, KAN 118U and KAY 288Y by public auction, on 15/08/2020 was contrary to rule 12 (2) of the Auctioneer Rules1997 and section 34 of the Civil Procedure Act as the said vehicles were not among the ones proclaimed by M/S Muriri Auctioneers on June 29, 2020; that the current execution proceedings is an abuse of the court process as there is another execution process in place pursuant to the warrants of attachment and sale issued to Sparknet Auctioneers on November 8, 2019; that this is a fitting case for an order that the plaintiff and Nashon Kerati Muriri t/a Muriri Auctioneers be ordered to pay the defendant damages for the illegal execution proceedings as provided for under section 27 of the Civil Procedure Act and rule 5 (1) of the Auctioneer Rules, 1997. Counsel asked this court to grant the orders sought.

8. The application is opposed. The plaintiff filed grounds of opposition dated July 21, 2020 and a replying affidavit dated August 20, 2020. In her grounds of opposition, the plaintiff contends:-i.That the application is misconceived, lacks merit, is frivolous, vexatious and an abuse of the court process.ii.That the application as sought is not tenable in law as the application has been filed against a disclosed agent, does not disclose any cause of action against the proposed party and is therefore bad in law.iii.That the application as filed is an abuse of the court process since the defendant has failed to honour the decree of the court granted on the February 14, 2019 and therefore a slap on the authority of the court and the administration of justice in Kenya.iv.That in view of the above, the applicant lacks aprima facie case against the Auctioneer to warrant the orders as sought.v.That the defendant made a similar application and were granted an order for stay of execution of the decree pending the hearing and determination of the intended appeal.vi.That the defendant made a similar application, further granted an order for stay of execution of the decree pending the hearing and determination of the intended appeal on condition they deposit a sum of Kshs 5,000,000/= within 45 days which they have failed to do.ii.That this application as a whole is an abuse of precious judicial time and it is in the interests of justice and fairness that the same be dismissed with costs to the proposed party/respondent.

9. In her replying affidavit, the plaintiff deponed that the application is misconceived, baseless, frivolous, vexatious and an abuse of the court process for the following reasons:-i.That it is a clear demonstration of the highest level of impunity to this court as it does not respect and obey the judgement issued on February 14, 2019 and the court orders issued on the August 8, 2019 respectively; that the application as filed is meant to deny her, a poor woman whose life has been made more miserable by the defendant, the fruits of her judgement; that by granting a stay of execution of the sale by public auction, it would mean that parties would revert to the position they were before the judgement, to the detriment of the plaintiff thereby meaning that it is pointless to knock at the doors of the court in the event of a dispute.

10. The plaintiff further deponed that the defendant has admitted that the court passed a judgement in her favour for Kshs 39, 476, 975/= as damages for breach of contract plus interest and costs but he has refused to pay the principal amount to date; that on February 14, 2019 upon the delivery of the judgement by the court, the defendant through its counsel on record applied for stay of execution for a period of 120 days pending the hearing and determination of the appeal; that the said application was opposed but the court granted stay for 60 days to enable the defendant file its application; that the defendant filed its application dated March 11, 2019 and a ruling dated August 8, 2019 was delivered by this court; that the application on stay of execution was allowed on the condition that the sum of Kshs 5,000,000/= be deposited in an interest earning account in the name of both advocates within 45 days of the ruling; that the intended appeal to be lodged in the Court of Appeal has never been filed; that the order requiring the deposit of Kshs 5,000,000/= has never been complied with to date which is a period of more than one year.

11. Further, the plaintiff stated that the court issued stay of execution on February 14, 2019 and later extended it on August 8, 2019 for 45 days until November 1, 2019 and time started running from the said date; that the warrants of attachment in execution of decree for money and the sale of property was duly issued by this court; that the application as sought is not tenable in law as the application has been filed against a disclosed agent and does not disclose a cause of action against the proposed party and therefore bad in law. The plaintiff urged this court to treat it with contempt as it is an abuse of the court process as it is intended to deny her from enjoying the fruits of the judgement.

12. The application was canvassed by way of written submissions. The defendant filed its submissions dated October 21, 2020 in court on even date. The defendant submitted that it is undisputed that the costs of the suit are yet to be taxed, that the plaintiff has not filed and/or served a Bill of costs in this suit and the costs of Kshs 30,088,452/= being executed are not owed to the extent that the execution proceedings taken against the defendant are manifestly illegal; that before the warrants of attachment and sale of the defendant’s property dated June 11, 2020 were issued, no order for execution as envisaged and provided for under section 38 (b) of the Civil Procedure Act and order 22 rule 13 (4) o theCivil Procedure Rules was made. To rebut this assertion, the defendant relied on the Court of Appeal case ofStanley Ng’ethe Kinyanjui v Tony Ketter & 5others [2015] eKLR where it addressed the provisions of order 22 of the Civil Procedure Ruleson execution proceedings. Further reliance was placed in the High Court cases of Actionrich Investment Company Limited v Joseph Otieno Onyango & 4 others, Republic v Commissioner of Police & 2othersex parte KCB [2014] eKLR and Dilbagh Singh Brothers (Investments) Limited v Alvi Auto Spares Limited [2012] eKLR where the courts addressed the proper procedure to execute.

13. Further to the foregoing, the defendant submitted that the warrants of attachment and sale of the defendant’s property were issued on June 11, 2020 nearly 16 months had elapsed since February 14, 2019 when the real decree in this suit was passed; that in the circumstances, the court was required in issuing any decree, to issue a notice to the defendant requiring the defendant to show cause why the decree should not be executed against her as per order 22 rule 18 (1) (a) of the Civil Procedure Rules. The warrants and attachment of sale issued on June 11, 2020 to Muriri Auctioneers was therefore null and void ab initio for having been issued in execution of a non-existence decree dated May 6, 2019.

14. On the items for attachment and sale, the defendant submitted that the defendant’s sugar mill and other office equipment lying in the offices towards the recovery of Kshs 69,566,427/= are not liable to attachment in execution under section 44 (1) (ii) of the Civil Procedure Act; that the decree being executed is contrary to order 21 rule 7 (1), (2) and 9 of the Civil Procedure Rules. The defendant relied on the findings of the court in Julius Owino Abiero & another v Oscar Otieno Odongo t/a Odongo Investment Auctioneers [2017] eKLR where the court held that the declaration that the attachment of “any other movable(s) found during service” is null and void and the proclamation is deficient to the extent that it does not give the description of items attached.

15. On the sale of the motor vehicles, KBQ 944U, KBR 765U, KAN 118U and KAY 288Y by public auction on August 15, 2020, it was submitted that it was unlawful, irregular and an abuse of the court process in so far as those vehicles were not proclaimed. The defendant submitted that the plaintiff and Nashon Kerati Muriri t/a Muriri Auctioneers should pay the defendant for the aforesaid illegal executions under Section 27 of the Civil Procedure Act and rule 5 (1) of the Auctioneers Rules, 1997.

16. The plaintiff filed her submissions dated December 28, 2020 in court on March 31, 2022 and submitted on four (4) issues. On whether the execution of the judgement and decree was lawful, it was submitted that the said decree was forwarded to the plaintiff’s advocates by a letter dated May 7, 2019. It was further submitted that the decree does not have an element of costs as alleged as the same has not been taxed; that the application for execution of the decree only has an element of interest; that the defendant is alleging that the proclaimed plant is an essential tool of trade and therefore not available for attachment and sale by public auction; that the defendant seeks to rely on section 44 (1) (ii) of the Civil Procedure Act to prevent the attachment of the sugar mill as it is their essential tool of trade. The plaintiff relied on the case of Blackwood Hodge (Kenya) Ltd v Lead Gasoline Tank Cleaning Sam and Chase (K) Ltd [1986] KLR 79 where the court interpreted section 44 of the Civil Procedure Act intended to protect not corporate entities but artisans whose livelihoods depend on their workmanship. Further reliance was placed on the case of Invesco AssuranceCoLtdv Kinyanjui Njuguna & Co Advocates &another [2020] eKLR.

17. Further to the foregoing, it was submitted that the claim that the intended sale of the five (5) motor vehicles is irregular as claimed, is false since a perusal of the schedule of property on M/s Muriri Auctioneers Proclamation dated June 29, 2020 indicates the vehicles were listed; that in light of the above authorities, the attachment of the defendant’s sugar mill as well as other office equipment was procedural and legal and the defendant’s argument that the sugar mill is its tool of trade is misguided and does not help them in any way.

18. The plaintiff submitted that judgement was delivered on February 14, 2019 and a ruling on the application for stay of execution was issued on August 8, 2019 in the defendant’s favour; that the stay was for a period of 45 days which lapsed on October 9, 2019 therefore the time for execution of the decree could only start running from then; that the plaintiff filed an application for execution of decree on 13/03/2020 and the court issued the warrants on June 11, 2020 and only five (5) months had lapsed since the issuance of the decree. In support, the plaintiff relied on the decision of Hassan AA Zubeidi v Thika Muslim Housing Co-operative Society Limited [2016] eKLR.

19. On whether Nashon Kerati Muriri t/a Muriri Auctioneers should be enjoined as a party and liable in any way, it was submitted that the proposed party is unambiguously a disclosed agent of the plaintiff; that the law of agency as regards a disclosed principle is clear and there is no need to belabour on the point. The plaintiff’s agent complied with the procedure in executing a decree and the defendant cannot claim otherwise.

20. On whether the application should be treated as a suit under section 34 (1) of the Civil Procedure Act, it was submitted that the defendant has misinterpreted the said provision in that there is a decree which exists and it was stayed at his own behest; that the decree issued does not have an element of costs as it has not been taxed and there is no execution on costs and non-proclaimed motor cars as alleged. It was further submitted that if the case was that the decree dated May 6, 2019 is non-existent, then the defendant would not have been prevented from seeking an order to have their application determined by this court under section 34 (1) of the Civil Procedure Act.

21. On whether the defendant is entitled to the reliefs sought in the application, the plaintiff submitted that no case has been laid out in this application; that the defendant’s intended appeal has not been filed for two (2) years now; that if the defendant was dissatisfied with the court order issued on August 8, 2019 the same has not been appealed against or complied with; that the defendant’s officers are in contempt of court for disobeying the judgement delivered on February 14, 2019 and the court orders issued on August 8, 2019. It was further submitted that contempt proceedings are of a serious nature that this court ought to down its tools and address itself on the plaintiff’s application dated October 21, 2020 first. The plaintiff relied on the case of Econet Wireless Kenya Limited v Minister for Information & Communication of Kenya & another [2005] eKLR.

22. The other application for determination is filed by the plaintiff and is dated October 21, 2020 and filed in court on October 23, 2020. The plaintiff seeks the following orders:-i.An order of committal to civil jail be made against the defendant’s Company Managing Director Stephen Ligawa and the Legal Services Manager/Ag Company Secretary Maurice Omondi Ng’ayo to prison for such period as this court may deem fit and just in that the said Stephen Ligawa and Maurice Omondi Ng’ayo has disobeyed the judgement issued on February 14, 2019 by this court.ii.An order of committal to civil jail be made against the defendant’s company Managing Director Stephen Ligawa and the Legal Services Manager/Ag Company Secretary Maurice Omondi Ng’ayo to prison for such period as this court may deem fit and just in that the said Stephen Ligawa and Maurice Omondi Ng’ayo has disobeyed the judgement issued on August 8, 2019 by this court.iii.Costs of this application be provided for.

23. The application is anchored on the grounds set out on its face and the supporting affidavit of Ngina Gitiba the plaintiff herein. The plaintiff deponed that judgement was delivered in her favour on February 14, 2019 in the presence of counsel for both parties; that on February 14, 2019, the defendant’s counsel applied for stay of execution of the judgment for a period of 120 days but the court granted a stay of execution for 60 days; that on March 11, 2019, the defendant filed a formal application seeking stay of the judgement pending the hearing and determination of the intended appeal in the Court of Appeal.

24. It was further deponed that the stay of execution was allowed on condition that the defendant deposits a sum of Kshs 5,000,000/= in an interest earning joint account in the names of the parties’ advocates within 45 days of the order; that it is now a period of 2 years and the defendant has not fulfilled the stay conditions; that the defendant and the 2 senior managers have disobeyed court orders and they have no audience before this court.

25. The defendant opposed the application and filed a replying affidavit sworn and dated on June 20, 2022 by Maurice Omondi Ng’ayo the Legal Services Manager/Ag Company Secretary of the defendant. Counsel admitted that judgement was delivered in the presence of the parties on February 14, 2019; that at the time when the judgement was delivered and on August 8, 2019 when the stay conditions were granted, the officer holders in the office of the Managing Director and the Company Secretary were Bernard Otieno and Gabriel Otiende respectively and are no longer in the defendant’s employment; that at all times relevant to compliance with the orders of August 8, 2019, himself and Stephen Ligawa were not the office holders; that in line with his duties, he advised the defendant’s management of the judgement and the ruling delivered on February 14, 2019 and August 8, 2019 respectively.

26. Further to the foregoing, counsel deponed that the defendant being aggrieved with the whole judgement and decree has filed an appeal being Nairobi Civil Appeal No 147 of 2020 and this was communicated to the plaintiff’s advocates via an email dated March 3, 2021. Counsel deponed that the defendant is facing financial difficulties and therefore unable to pay the Kshs 5,000,000/= for lack of money. Counsel asked this court to disallow the application as prayed.

27. In response, the plaintiff filed a supplementary affidavit dated 29/06/2022 and filed in court on July 5, 2022 and deposed that the response is frivolous for the reasons that the defendant is now alleging the inability to pay 2 years after the decree was passed but it has never been brought to the court’s attention and the response is an afterthought; that there is admission by the defendant that they were aware of the judgement and the stay of execution order granted on August 8, 2019 had a default clause meaning that the plaintiff had every right to execute; that Maurice Omondi Ng’ayo admitted during cross examination that the only reason they had not paid the decree was that they were dissatisfied with the judgement; that there is no stay order stopping execution in the appeal case filed. The plaintiff asked this court to allow her application to enable the defendants to respect the court decisions and orders.

28. Both parties filed their respective submissions on the plaintiff’s application dated October 21, 2020. The plaintiff filed her submissions dated March 31, 2022 on even date. The plaintiff reiterated the history of this suit and submitted on 4 issues for determination.

29. On the law governing contempt of court orders, the plaintiff relied on the cases of Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] eKLR and Africa Management Communication International Limited v Joseph Mathenge Mugo &another [2013] eKLR where the courts discussed the reasons why a court of law will punish for contempt. Further, the plaintiff submitted that the legal regimes regarding punishment for contempt of court are found in section 5 of the Judicature Act and section 63 of the Civil Procedure Act.

30. On whether the orders allegedly breached were served or they were within the defendant’s knowledge, it was submitted that the judgement was delivered on February 14, 2019 in the presence of the defendant’s counsel; that on October 27, 2020, the court had the opportunity of hearing from Maurice Oduor Ng’ayo and confirmed that he was aware of the judgement; that this is a clear demonstration of the wilful, deliberate, dishonest and disrespect of the court’s judgement; that the defendant has not complied with the conditional stay to deposit the sum of Kshs 5,000,000/= as security.

31. Further, it was submitted that the officials cited herein have always been aware of the orders of the court because the defendant had an advocate on record representing it. To support this contention, the plaintiff relied on the case of Kenya Tourist Development Corporation v Kenya National Capital Corporation & another Nairobi High Court Civil Case No 6776 of 1992 where it was held that a party having knowledge of the order of the court supercedes personal service of the same upon them. Further, in Kenya Bus Services v Susan Muteti Nairobi Civil Appeal No 15 of 1992 the court held that an Advocate is a special agent authorized to act for his client and by virtue of being present in court serving them, the defendants are deemed to be served.

32. On whether the applicant has proved his case to the required standard, the plaintiff submitted that the orders must be served personally or it should be demonstrated that the contemnor had knowledge of the court order. The plaintiff reiterated that the judgment was delivered in the presence of counsel of both parties and therefore the contemnors had a knowledge of this. To support this, the plaintiff referred the court to the case of Cecil Miller v Jackson Njeru &another [2017] eKLR and Godfrey Kilatya Kituku & 6othersv Malindi Municipal Council [2005] eKLR.

33. In conclusion, the plaintiff asked the court to allow the application and rightfully find the contemnors guilty of contempt of court and convict them accordingly as a matter of public interest.

34. The defendant filed its submissions dated June 20, 2022 on June 21, 2022. The defendant submitted that it has demonstrated that it could not comply with the orders of stay of execution pending appeal made on August 8, 2019 for the reasons that they did not have funds to deposit in court as security; that given the colossal principal award and the fact that the defendant has preferred an appeal to the Court of Appeal, it is understandable that the defendant had not paid the plaintiff the principal award and the accrued interest on it.

35. The defendant further submitted that there is nothing preventing the plaintiff from taxing the costs of the suit and taking out execution proceedings to realize the fruits of the judgement since there is no stay of execution pending appeal. that the orders to deposit the security pending the appeal; were transient and conditional and since there is default in depositing the security on the defendant’s part, those orders lapsed and ceased to exist. The orders are no longer in force and cannot benefit either the defendant or the plaintiff.

36. I have carefully considered the Notice of Motion applications dated July 13, 2020 and October 21, 2020, the respective responses and the rival submissions. The issues for determination are:-i.Whether the execution proceedings commenced by the plaintiff are lawful.ii.Whether the application dated July 13, 2020 should be treated as a suit.iii.Whether one Nashon Kerati Muriri t/a Muriri Auctioneers should be joined as part to this suit.iv.Whether the defendants are in contempt of the judgement issued on 14/02/2019 and the court orders issued on August 8, 2019.

37. On whether the execution proceedings conducted by the plaintiff are lawful, the question will be answered in three limbs:-a.Whether the decree was properly drawn.b.Whether the execution was done in adherence to the stipulated timelines.c.Whether the goods listed on the proclamation form, were properly proclaimed.

38. On whether the decree was properly drawn, the defendant argued that the costs which the plaintiff wants to execute amounting to Kshs 30,000,000/= were not taxed. On the other hand, the plaintiff argues that the money is not the costs payable but the interest that has accrued on the judgement sum.

39. I have perused the court record. The defendant made an application for extraction of the decree and paid the required fee on April 25, 2019. The decree was drawn up and issued on May 6, 2019. The total sum was KShs 39,599,255/= which was to accrue interest at court rates from the date of filing suit. The defendant has claimed that the plaintiff was executing KShs 30,088,452/= as taxed costs. In support of this allegation, the defendant has annexed to the supporting affidavit of Maurice Omondi dated July 13, 2020 as “MON1” the warrants of attachment for sale. I have perused the warrants of attachment for sale issued to Muriri Auctioneers. The said KShs 30,088,452/= is indicated to be the taxed costs whereas in the warrants of attachment issued to Sparknet Auctioneers Service KShs 30,088,452/= the same is indicated as the interest accrued. Therefore, it is not possible to know what exactly the amount of KShs 30,088,452/= was referring to.

40. Although there is that confusion, it is not correct for the defendant to allege that the decree does not exist when in fact it is the one who requested for it to be extracted. The only confusion which arises is that in the current warrants for attachment for sale issued to Muriri Auctioneers KShs 30,088,452/= are the taxed costs. There is no evidence that taxation of costs was done. The plaintiff should have been very clear as to what their actions were, costs or interest. The confusion cannot be blamed on the defendant.

41. On the timelines of executing the decree, the decree was extracted on May 6, 2019. Order 22 rule 18 provides as follows:-18. Notice to show cause against execution in certain cases [order 22, rule 18. ]“(1) Where an application for execution is made—(a)more than one year after the date of the decree;(b)against the legal representative of a party to the decree; or(c)for attachment of salary or allowance of any person under rule 43, the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, ….”

42. It is very clear from the above provisions, that a notice to show cause of execution should issue first if there is a lapse of more than a year from the date of the decree. The only exception where the notice to show cause need not be issued is where there was previously an application for execution which was made within time and a year has lapsed from the last order against the judgement debtor. In such circumstances, a notice to show cause need not be issued.

43. In my view, time starts running at the time when the decree was extracted. The decree is dated May 6, 2019. Therefore, the application for execution ought to have been filed on or before May 6, 2020. The law further requires that a notice to show cause should be issued to the judgement debtor to show why the decree should not be executed after the lapse of one year.

44. The application for execution of the decree was filed by the plaintiff on May 13, 2020 after the lapse of one year. Guided by the order 22 rule 1 Civil Procedure Rules, a notice to show cause should have been issued to the defendant first before commencement of execution proceedings. It is this court’s finding that the execution proceedings by the plaintiff were not lawful. The warrants of attachment are hereby recalled and set aside.

45. The third limb on whether the listed goods were properly proclaimed, is moot since this court has already found that the warrants of attachment of sale were unlawful and should be set aside. I will still proceed to address the issue to settle any future controversies that may arise. The defendant submitted that in executing the null warrants of attachment of sale, M/s Muriri Auctioneers attached the defendant’s sugar mill (whole plant) and other office equipment lying on the offices which are the defendant’s essential tools of trade. The issue is whether the mill is liable for attachment.

46. Section 44 of the Civil Procedure Act provides on the property liable to attachment and sale in execution of a decree. The exceptions are given under sub - section (i) – (xi). Section 44 (1) (ii) of the Civil Procedure Act reads:-Provided that the following shall not be liable to attachment or sale-“the tools and implements ofa person necessary for the performance by him of his trade or profession;”

47. I have considered the arguments and the cases relied upon by each party. The issue, which properties are liable to attachment and sale in execution of a decree, is well rested. In the case of Black Hodge (Kenya) Limited v Lead Gasoline Tank Cleaning Sam & Chase Bank (K) Ltd [1986] eKLR, referred to by the plaintiff, Bosire J held as follows:-“Section 44 is intended to protect, not corporate entities but artisans - whose livelihood depends on their workmanship. The relevant provision reads: -“section 44 (1) (ii) the tools and implements of a person for the performance by him of his trade or profession;” (underlining mine). In my view “person” as used in the sub-section does not include a corporate body.”

48. The tools of trade which are not liable for execution refer to a natural person and not corporate entities. The instructed Auctioneer cannot therefore be faulted for proclaiming the machines for the defendant. The law does not protect corporate bodies which the defendant is one, from attachment and sale of their tools of trade.

49. The defendant asked this court to treat this application as a suit. The defendant relied on the provisions of section 34(1) of the Civil Procedure Act which provides:-“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relation to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.”

50. The law provides that any or all issues ensuing between parties to the suit in which the decree was passed, shall be heard by the court which passed the decree, but not a separate suit. In other words, the court which heard and determined the suit by the parties shall be the same court which will be entitled to listen to all other questions arising after passing of the decree and not any other court. In the present case, this court heard and determined the suit by the parties. Therefore, it still remains to be the first point of call to determine any other issue apart from an appeal and the special circumstances where the Deputy Registrar is required to deal, in execution proceedings.

51. Order 49 of the Civil Procedure Rules donates special powers to the Deputy Registrar. Rule 5 empowers the Deputy Registrar to make orders for execution as follows:-“Formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and ordered by imprisonment in execution of a decree of the High Court may be made by the registrar or, in a subordinate court, by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand, but in the event of any objection being taken to the proceedings thereunder, all further proceedings shall be before a judge.”

52. Order 49 rule 5 of theCivil Procedure Rules limits the powers of the Deputy Registrar in execution proceedings to making formal orders of attachment and sale of property, issuing of notices to show cause on application for arrest and imprisonment in execution of a decree. Any other questions should be referred to a Judge.

53. The grievance by the defendant is that the execution proceedings were irregular. The question on the regularity or irregularity of execution of decrees as provided for under order 49 rule 5 (supra) is rightly before this court. There is no other court which would have listened to the issues arising out of the execution of the decree other than this court. Therefore, the prayer that this application be treated as a suit does not make sense because in any event, the main suit has been heard and determined. Any other suit filed in relation to this matter, will be res judicata.

54. Having found that the execution proceedings were unlawful, there is no need to determine whether Nashon Kerati Muriri t/a Muriri Auctioneers is a necessary party to this suit.

55. On the contempt proceedings commenced by the plaintiff, the plaintiff’s application dated October 21, 2020, seeks to have this court find that the defendant is in contempt of the judgement delivered on February 14, 2019 and the orders issued on August 8, 2019. By admission of all parties, there is no dispute that judgement was delivered on February 14, 2019 in favour of the plaintiff for a sum of KShs 39,599,225/=. It is also not in dispute that stay of execution pending appeal, was granted in favour of the defendant on condition that it deposits a sum of KSh 5,000,000/= in a joint interest earning account in the names of both advocates. The defendant through Maurice Omondi Ng’ayo its Legal Services Manager/Ag Company Secretary deposed that the defendant is not in a position to comply with the stay orders of August 8, 2019 since it is not in a financial position to do so. Further, in its submissions of June 20, 2022, the defendant submitted that the orders on deposit of security pending appeal have lapsed by virtue of default in depositing security on its part and therefore nothing stopped the plaintiff from taxing the costs of this suit and taking out execution proceedings to realize the fruits of her judgement.

56. The orders for stay of execution, were issued on August 8, 2019. The stay order was on condition that the defendant deposits a sum of KShs 5,000,000/= within 45 days. In default thereof, the execution proceeds. The defendant has admitted that there is nothing which stopped the plaintiff from proceeding to realize the fruits of her judgement since the stay orders were not complied with. In my view, the application for contempt was unnecessary. The plaintiff should have proceeded with the execution proceedings instead of filing a contempt of court application. The defendant cannot be said to have been in contempt of any court orders. The orders which the plaintiff claims the defendant was in contempt, emanated from a judgement which the plaintiff was at liberty to execute in default of the stay orders. The application to find the defendant in contempt of court lacks a basis an therefore dismissed.

57. From the foregone analysis the following orders do issue:-1. The warrants of attachment of movable property in execution of decree for money and the warrants of sale of property in execution of decree for money issued to Muriri Auctioneers on June 11, 2020 for recovery of KShs 69,556,427/= be and is hereby annulled and set aside.2. The plaintiff to bear the costs of the illegal execution including costs of the application dated July 13, 2020. 3.The plaintiff be at liberty to commence execution proceedings in accordance with the law.4. Application dated November 21, 2020 is dismissed with costs to defendant.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 15TH DAY OF NOVEMBER, 2022R WENDOHJUDGERuling delivered in the presence of:-Mr Mugoye for the plaintiffNo appearance for the defendantEvelyne Nyauke - Court Assistant