[2013] KEHC 4437 (KLR)

REPUBLIC OF KENYA

High Court at Nakuru

Civil Case 223 of 2000 [if gte mso 9]><xml>

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JOHN MUHANDA MUYA………………..……..1ST APPLICANT

FAITH WANJIRU MUYA………………….……2ND APPLICANT

VERSUS

STANLEY K. KURIA………………...…………1ST DEFENDANT

MONICA WAITHERA MUGOTO…………….2ND DEFENDANT

RULING

The Notice of Motion dated 11/12/2012 is brought by the defendants/applicants who seek the following orders; that the court do stay execution of the decree issued by this court on 23/3/2011 and costs be provided for. The application is based on grounds found on the face of the application and the affidavit of Stanley K. Kuria, dated 11/12/2012. This suit was filed in the year 2000, judgment was entered against the applicants on 17/6/2010 and a decree issued on 23/3/2011. The applicant deposed that he was shocked to receive a proclamation from Legacy Auctioneers attaching his property. The said notice is dated 19/11/2012 and he has been advised by his advocate that the attachment is unlawful because no notice to show cause was issued before the purported execution. Ms Wanjiku, counsel for the applicant urged that the execution is irregular because it took place a year after the decree was issued contrary to Order 22 Rule 18(1)(a) of the Civil Procedure Rules. In support of that proposition, counsel relied on the decision of J. Odunga in Reuben Nyanginja Ndolo v Dickson Wathika Mwangi, Jerusa Chepsap and Election Commission of Kenya, Pet. 11/2008. Counsel urged the court to grant the application.

The application was opposed and the plaintiff/respondent’s filed grounds of opposition on 17/12/2012:-

1. That it is unjust and oppressive to permit, or contemplate further delay in the performance of the Decree for the reasons:-

(a)The money awarded in the Decree was needed by the estate of the deceased twelve (12) years ago, when this suit was instituted.

(b)The applicant has not made any payment and the deceased’s estate continues to languish in extreme financial constraints by reason that the deceased was the sole breadwinner.

(c)The deceased’s widow, the second plaintiff herein, is hardly able to support the deceased’s two (2) children.

2. That Order 22 Rule 22 of the Civil Procedure Rules, 2010, is not applicable in the circumstances herein by virtue of :-

(a)This court is not one to which a decree has been sent for execution, contemplated in the enactment.

(b)(i) Consequently, even the interim stay of execution is irregular and was obtained by misrepresentation.

(ii) Such stay should be discharged forthwith.

3. That the application at hand is made with unreasonable delay and the first defendant is guilty of laches and indolence.

4. That the first defendant’s averments in paragraph 5 of his affidavit sworn on the 11th December 2012, should be stuck out, as he by his present application departed from Rule 18 of Order 22, previously asserted by him.

5. That the aggregate sum sought in execution is not exaggerated as the interest rates applied on the decretal sum and costs in 12% and 14%, respectively.

6. That the first defendant’s application is only a scheme to prevent the plaintiffs from enjoying the fruits of the decree and consequently an abuse of the court process.

7. (a) That the said defendant’s first application for stay of execution, dated the 15th July, 2010, was on the 7th of March, 2011, adjourned due to the defendant’s absence from court, conduct which serves to demonstrate the defendant’s effort to defeat the ends of justice, as since then, the said application was never set down for hearing.

(b) That the first defendant’s second application for stay of execution, dated the 26th November 2012 was on the 10th December 2012 struck out.

8. (a) That the present application lacks in merit for the aforesaid reasons and consequently should be dismissed.

(b) It is the third such application mischievously brought before court.

9. Without prejudice to the foregoing, the application is not only unjust and unreasonable but fatally and incurably defective and should be struck out.

10. The affidavit of Faith Wanjiku Muya, sworn on the 15th October 2010 and filed in court on the 22nd October 2010.

Mr. Kagucia, learned counsel for the respondent urged that the application is meant to delay the respondent’s enjoyment of the fruits of the judgment; that this application does not lie under Order 22 Rule 22 of the Civil Procedure Rules 2010,because that provision applies where a decree has been sent to another court for execution; that Rule 18 was only sneaked into this application; that notice to show cause is not available to the applicant because of the provisos to Rule 18, because the period of the year was interrupted by others steps that took place against the applicant, that is taxation and an application for stay that was never prosecuted. Counsel further submitted that the applicants have not shown good faith in that they have not even paid the principal sum if at all the interest is disputed. That they could have paid and moved the court for computation of the interest. Counsel also urged that the applicants have not demonstrated what prejudice they will suffer if the application is not granted.

I have considered the rival arguments put forth by both sides. The first issue I will address is whether the application as brought, that is under Order 22 Rule 22 of the Civil Procedure Rules can be sustained. Although the heading of the application indicates that it is brought pursuant to Order 22 Rule 22, Civil Procedure Rules the grounds to the application indicate that the execution process contravenes the express provisions of Order 22 Rule 18(1)(a) of the Civil Procedure Rules.

In my considered view, failure to cite the correct provisions of law to an application may be a mere error that cannot lock a party out of the seat of justice. Besides the fact that the applicant referred to the Order 22 Rule18(1)(a)of the Civil Procedure Rules in the grounds to the application clearly shows his intention to invoke the said provision and the court finds that the application is properly before the court and the court will consider whether or not Order 22 Rule 18(1)(a) was contravened. The rule reads as follows:-

“O.22 r.18(1) Where an application for execution is made –

(a)more than one year after the date of the decree

(b)….

(c)…..

The court executing the decree shall issue a notice against the person whom execution is applied for requiring him to show cause on a date to be fixed why the decree should 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 as applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him:

Provided further that no such notice shall be necessary on any application for the attachment of salary or allowance which is caused solely by reason of the judgment-debtor having changed his employment since a previous order for attachment”.

In the proviso to the above stated rule, if another application for execution has been made within the past year against the party whom execution is applied for and an order of execution had been made against such person, then notice to show cause would not be necessary. Mr. Kagucia submitted that the file had been active because there had been a previous application dated 15/7/2010 setting stay pending appeal. It was last in court on 7/3/2011 when the applicant’s counsel failed to attend and it was stood over generally. The court did not make any orders of execution in that application. The next activity on the file is when the costs were taxed by the Deputy Registrar on 10. 4.12. Taxation did not relate to execution of the decree. I find that the activities that took place in this matter do not fall within the exception in the proviso. I have considered the decision in Reuben Nyanginja Ndolo (supra) which is only of persuasive value to this court the same having been made by a judge of concurrent jurisdictation. I do, however, agree with J. Odunga’s observation that the notice to show cause serves two purposes i.e. To give notice to the Judgment Debtor to pay the decretal sum in the case where due to the lapse of time he may have forgotten about the existence of the decree and secondly, the requirement of notice is meant to put the Decree Holder on notice that if he delays in pursuing his rights, the process of execution will be subjected to the notice and that delay in execution results in escalation of costs and interest. The circumstances in the above cited case were nearly similar to the present scenario.

The decree herein was issued on 23/3/2011. A year lapsed on 22/3/2012. If the respondent wanted to execute, a notice to show cause should have been served on the applicant in terms of Order 22 Rule 18 (1)(a), Civil Procedure Rules and failure to comply with that provision rendered the execution by way of attachment irregular.

This case is whether there has been unreasonable delay in bringing this application. I do agree with the respondent that indeed the applicant has been aware of the judgment herein since its delivery on 17/6/2010, over two years ago. The applicant attempted to apply for an order for stay pending appeal. That application was never prosecuted. There is no evidence that the applicant ever filed an appeal against the judgment of the court. The applicant has not given any reason why they never paid the decretal sum and await the interest and costs to be determined later. Sitting back and waiting for the execution to commence then rush to court to stop execution on account of an irregularity in procedure is not an act of good faith. The applicants are bent on delaying the respondents'' realization of the fruits of the judgment.

Before I conclude, I must make mention of the applicants reference to the affidavit of Faith Wanjiru Muya sworn on 15/10/2010. That affidavit was filed in reply to the application for stay filed by the applicant but was never prosecuted. The respondents sought to rely on it. It is part of the record and the respondent did not need to file another affidavit to annex to that of Faith Wanjiru. In that affidavit the respondent deposed as to the reasons for opposing an application for stay the reasons being that the suit had been filed in 2000 and it had taken 10 years to get judgment after delays on the part of the applicant and that an order of stay was therefore prejudicial to the respondents. Reference to the affidavit filed by the respondents is not prejudicial to the applicants and paragraph 10 of the grounds will not be struck out.

In the end, I am satisfied that the execution was unprocedural in that a notice to show cause was not issued, to the applicants contrary to the provisions of the Civil Procedure Rules. Taking into account the applicant’s indolence and lack of diligence in that the applicant has never attempted to settle any part of the decretal sum, and in doing my best to do justice to both parties, I will grant an order of stay on condition that the applicant pays part of the decretal sum. The decretal sum stands at Kshs.1,580,817/- and I hereby direct that the applicant do pay the respondent Kshs.800,000/- within 21 days hereof, in default the order of stay will lapse automatically and execution may proceed. The applicant to bear the costs.

DATED and DELIVERED this 15th day of March, 2013.

R.P.V. WENDOH

JUDGE

PRESENT:

Ms Wanjiku for applicants/Judgment Debtor

Mr. Kagucia for respondents/Decree Holder

Kennedy – Court Clerk

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