[2004] KEHC 1430 (KLR)
The court held that the sum of KES 537,976 arose after liability was revised in the substantive suit and was not part of the consent judgment entered for KES 665,000. Since there was no judgment for the new amount, the respondent could not execute for it. The proper procedure would be to file a fresh suit for the...
Source-derived case information.
- Citation
- [2004] KEHC 1430 (KLR)
- Parties
- Plaintiff: Judith Kemuma Ombuna (minor) suing through her father and next friend Zachary Ombuna Maroro; Defendant: Madison Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 59 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Restraining Order
- Outcome
- Application allowed. Respondent restrained from executing for the new amount unless judgment is first obtained.
- Judges
- K Bauni
- Legal Topics
- Execution of Judgment, Consent Judgment, Declaratory Suit, Apportionment of Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judith Kemuma Ombuna (minor) suing through her father and next friend Zachary Ombuna Maroro
Plaintiff
Madison Insurance Co. Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Restraining Order
Legal Issues
- 1 Whether the respondent can execute for the revised sum of KES 537,976 without obtaining a new judgment for that amount.
- 2 Whether the applicant is entitled to an order restraining execution for the revised sum.
Ratio Decidendi
The court held that the sum of KES 537,976 arose after liability was revised in the substantive suit and was not part of the consent judgment entered for KES 665,000. Since there was no judgment for the new amount, the respondent could not execute for it. The proper procedure would be to file a fresh suit for the amount or apply for a review of the court judgment to include the new sum. The letter sent to the applicant was a clear threat to execute, not merely informational, and the applicant was justified in seeking the court's protection. Accordingly, the court allowed the application and restrained the respondent from executing for the new amount unless judgment was first obtained for it.
Court Disposition
Application allowed. Respondent restrained from executing for the new amount unless judgment is first obtained.
Orders
- The respondent is restrained from executing for the sum of KES 537,976 unless judgment is first obtained for the same against the applicant.
- Costs of the application will be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII CIVIL CASE NO.59 OF 2003
JUDITH KEMUMA OMBUNA )
(minor) suing through her father and next friend )
ZACHARY OMBUNA MARORO ) ………………. PLAINTIFF
VERSUS
MADISON INSURANCE CO. LTD ……………………………… DEFENDANT.
RULING
Applicant sought order restraining the respondent from executing for shs.537,976/= or any other sum.
The plaintiff filed this declaratory suit against the applicant asking that he satisfy the decretal sum in Kisii HCCC.NO.131 of 1998. The decretal sum then was shown as shs.665,000/=. By a consent judgment was entered in favour of the plaintiff as prayed. The defendant thereafter paid the decretal sums, interest and costs. In the substantive suit liability had been apportioned at 70%-30% in favour of the Plaintiff. Apparently after the applicant had paid the decretal sum the respondent made an application in the substantive suit and liability was enhance from 70% to 100% against the respondent. On 24/2/04 counsel for respondent wrote to the applicant and threatened to execute for the reviewed sum of shs.537, 976/=. Applicant filed this application.
Application was opposed. Court was told the application is premature as there is no decree drawn from the reviewed amount and the letter sent to the applicant was only for information.
First the letter sent was not for information as submitted.
The letter – annexture ‘H’ dated 4/2/04 demands the applicant forward a cheque of shs.537,976/= being the balance of the decretal amount. It further warns them that if the cheque is not received within 14 days execution warrants would issue. That was not information but clear threats to execute. The applicant was perfectly in order to come to counter the threats. As submitted he should not have sat back and wait for the worst to happen.
It is not disputed that the sum of shs.537,976/- is an amount which arose after liability revised. This amount therefore does not form part of the consent judgment entered. By the time the suit was filed the decretal sum was clearly shown as shs.665,000/=. This is what formed the court judgment entered. So far there is no judgment of the new amount of shs.537,976/= and as such the respondent can execute for the same. As submitted by counsel for the applicant the respondent can only file a fresh suit for the amount or apply for a review of the court judgment entered to include the new amount. When the declaratory suit was filed the decretal sum was clearly known and that is the sum the consent judgment was entered for.
In the circumstances I allow the application as prayed and direct the respondent restrained from executing for the new amount of shs.537,976/- unless he first obtains judgment for the same against the applicant. Costs of this application will be in the cause.
KABURU BAUNI
JUDGE.
25/3/04
Ms. Obaga for Plaintiff/Respondent
Mr. Ngeno for Applicant.
Ms. Obaga:
I apply for leave to appeal against the ruling.
KABURU BAUNI
JUDGE.
Court:- Leave to appeal granted.
KABURU BAUNI
JUDGE