[2006] KEHC 2900 (KLR)
The court found that the applicant had fully complied with all procedural requirements for the attachment and sale of the judgment debtor's shares in Menno Plaza Limited. The respondent's opposition, which merely asserted prematurity without substantive legal basis, was insufficient to defeat the application. The...
Source-derived case information.
- Citation
- [2006] KEHC 2900 (KLR)
- Parties
- Plaintiff: Kembi Gitura t/a Kembi Gitura & Company Advocates; Defendant: Menno Travel Services Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 986 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Execution of Decree by Sale of Shares
- Outcome
- application allowed in its entirety with costs to the applicant
- Legal Topics
- Execution of Decree, Attachment of Shares, Sale of Shares, Judgment Debtor Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kembi Gitura t/a Kembi Gitura & Company Advocates
Plaintiff
Menno Travel Services Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Execution of Decree by Sale of Shares
Legal Issues
- 1 Whether the applicant is entitled to orders for sale of the judgment debtor's shares in Menno Plaza Limited to satisfy the decretal amount.
- 2 Whether the application for sale of shares is premature or procedurally defective.
Ratio Decidendi
The court found that the applicant had fully complied with all procedural requirements for the attachment and sale of the judgment debtor's shares in Menno Plaza Limited. The respondent's opposition, which merely asserted prematurity without substantive legal basis, was insufficient to defeat the application. The court held that the applicant was entitled to the orders sought for the sale of shares to satisfy the outstanding decretal amount, as the judgment remained unsatisfied despite the issuance and service of a prohibitory order. The application was therefore allowed in its entirety with costs to the applicant.
Court Disposition
application allowed in its entirety with costs to the applicant
Orders
- The shares held by Menno Travel Services Limited in Menno Plaza Limited shall be sold through a broker.
- The proceeds of sale shall be paid directly to the decree-holder.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL
COURTS)
Misc Appli 986 Of 2003
KEMBI GITURAT/A KEMBI GITURA & COMPANY ADVOCATES…….... PLAINTIFF
VERSUS
MENNO TRAVEL SERVICES LIMITED.…...…...........................…………DEFENDANT
RULING
This Notice of Motion has been brought under Order XX1 Rules 41, 59, 70(3), (4), (5) and (6) Order XLVIII Rule 5(1)(b)(x) and Order L Rule 1 of the Civil Procedure Rules. It seeks the following orders:-
1) That the shares held by Menno Travel Services Limited, the Judgment/debtor, in Menno Plaza Limited be sold through a broker.
2) That the proceeds of sale be paid directly to the decree-holder.
3) That Menno Travel Services Limited be prohibited from making any transfer of its shares in Menno Plaza Limited to any person except the purchaser or receiving payment of any dividend or interest thereon.
4) That the directors Secretary Registrar or any other officer of Menno
Plaza Limited be prohibited from permitting the transfer of the shares or making any payment to any person except the purchaser.
5) That the directors Secretary, Registrar or other officers of Menno Plaza Limited do execute the transfer or other instrument and all necessary documents in respect of the judgment debtors shares to the purchaser and in default the Registrar of this Court do execute such transfer or documents as may be necessary for purposes of transferring the shares to the purchaser.
The primary grounds for the application are:-
a) That the applicant/decree/holder obtained judgment against the respondent judgment debtor on 24. 6.2004 and no payment has been made towards settlement of the decretal amount since then.
b) That an application for execution of decree was filed on 26. 8.2004 pursuant to which a Prohibitory Order attaching the judgment debtor’s shares in Menno Plaza Limited was issued.
c) That the Prohibitory Order was duly served on the Company Secretary of Menno Plaza Limited and on a director of the judgment debtor despite which the decree remains unsatisfied.
The application is supported by an affidavit sworn by Steven Gatembu Kairu Advocate a partner in the applicant firm of Advocates. The affidavit elaborates the above grounds.
The application is opposed upon the grounds set out in the replying affidavit of one Wilfred Dickson Katibi a director of the respondent. The only substantive ground in the said replying affidavit is that this application is premature and does not lie.
I have considered the application, the affidavits and the submissions by Learned Counsels. I feel that the replying affidavit of the said Wilfred Dickson Katibi is not an answer to the application at all. The applicant has complied with the procedural requirements for the sale of shares in Menno Plaza Limited and is entitled to the orders sought.
Accordingly the application dated 18. 8.2005 and filed on 6. 10. 2005 is allowed in its entirety with costs.
Orders accordingly.
DATEDANDDELIVEREDATNAIROBITHIS30th DAYOFMARCH, 2006.
F. AZANGALALA
JUDGE
30/3/2006