[2006] KEHC 2088 (KLR)
The court found that the objector, although claiming to be a distinct legal entity formed in 2001, was in substance the same as the deregistered union against which the judgment was entered. The officials and facilities remained unchanged, and the objector failed to demonstrate a clear legal distinction. The court...
Source-derived case information.
- Citation
- [2006] KEHC 2088 (KLR)
- Parties
- Plaintiff: Joshua Mwelesa Kalwale; Defendant: Union of Kenya Civil Servants; Defendant: Another (not named)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1587 of 1976
- Procedural Posture
- Civil Case / Ruling on Objection to Attachment Under Order Xxi Rule 56 and 57
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Execution of Judgments, Objection Proceedings, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Mwelesa Kalwale
Plaintiff
Union of Kenya Civil Servants
Defendant
Another (not named)
Defendant
Procedural Posture
Civil Case / Ruling on Objection to Attachment Under Order Xxi Rule 56 and 57
Legal Issues
- 1 Whether the objector was a party to the original suit and thus liable to attachment of its property.
- 2 Whether the objector is a distinct legal entity from the judgment debtor and thus not liable for the judgment debt.
- 3 Whether the attachment of the objector's property was lawful.
Ratio Decidendi
The court found that the objector, although claiming to be a distinct legal entity formed in 2001, was in substance the same as the deregistered union against which the judgment was entered. The officials and facilities remained unchanged, and the objector failed to demonstrate a clear legal distinction. The court held that the objector's remedy, if any, lay in applying to set aside the ex parte judgment rather than objecting to the attachment. As such, the application to lift the attachment was dismissed, and the attachment of the property was upheld as lawful.
Court Disposition
application dismissed with costs
Orders
- The objector's application is dismissed.
- The attachment of the property stands.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1587 of 1976
JOSHUA MWELESA KALWALE………………………………...PLAINTIFF
VERSUS
UNION OF KENYA CIVIL SERVANTS AND ANOTHER.…DEFENDANTS
RULING
The applicant by way of this Chamber Summons brought under Order XXI Rule 56 and 57 of the Civil Procedure Rules seeks orders that the attachment of the objector’s property by the Decree Holder herein be raised. The application is based of the grounds:
1. That the objector herein was never and has never been a party to the suit herein and the Decree Holder has no right in law to attach its property through its agents or otherwise.
2. That the objection herein has an indefeasible legal title and interest in the property that has been attached by the Decree Holder herein and the Decree Holder has no right in law to attach its property.
3. That if the attachment is not lifted forthwith, the object stands to suffer irreparable harm to its business and reputation.
4. That it is in the interest of justice and fairness that the court do grant the orders sought. The applications also supported by an affidavit sworn by ALPHAYO NYAKUNDI, the General Secretary of the Objector herein the Union of Kenya Civil Servants, who avers that the Union of Kenya Civil Servants was deregistered in 1980 by the Government of Kenya and it therefore ceased to exist for all intents and purposes under the law, that in the year 2001, a new Civil Servants Union.
Coincidently named the Union of Kenya Civil Servants was formed which said union had no relations whatsoever that the objector was never and has never been party to the suit herein, that the similarity in names between the Union of Kenya Civil Servants against which the suit was filed in 1976 and the current Union of Kenya Civil Servants established in 2001 is of no legal bearing as the two are distinct and separate legal entities, that the objector cannot be liable for the debts and even judgments entered prior to its existence that the Decree Holder has no right or legal basis to attach the objector’s properties as he purported to.
The application is opposed by the Degree Holder who has filed a replying affidavit sworn by the respondent. Degree Holder who has avers that the Judgment Debtor and the Objector is one and the same Union, that when the Union of Kenya Civil Servants was deregistered in 1980 and in 2001 when the new was formed the officials were the same and in fact the present Secretary General who swore the affidavit a behalf of the objector is the same. The attachment of the objectors good was through a judgment of this court which was delivered on 27th October 2004.
The hearing proceeded ex parte because the Decree Holder had obtained Interlocutory Judgment. The Objectors submit that they were never served. What they ought to have done was to apply for orders to set aside the ex parte judgment. Denials of service at this stage when the exparte judgment is in force does not assist the objector.
The respondent has proved that the union is the same as well as the officials at the time of deregistration and at the time of revival and the objectors are using the same facilities.
In the result the objectors’ application fails and the same is dismissed with costs.
Dated and delivered at Nairobi this 22nd day of June 2006.
J.L.A. OSIEMO
JUDGE