[2024] KECPT 73 (KLR)
The Tribunal found that the applicant failed to provide a reasonable explanation for non-appearance, as neither the judgment debtor nor his advocate attended court physically or virtually on the date the warrant of arrest was issued. The applicant also failed to comply with the High Court's order to deposit the...
Source-derived case information.
- Citation
- [2024] KECPT 73 (KLR)
- Parties
- Applicant: Washington Silvanus Washiali Khwale; Respondent: Mumias Cane Farmers Cooperative Union Limited; Respondent: Alloys Mandu
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 12B of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Lift Warrant of Arrest and Set Aside Orders
- Outcome
- application dismissed with costs; warrant of arrest to remain in force
- Judges
- BM Kimemia, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Execution of Judgment, Warrant of Arrest, Notice to Show Cause, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Washington Silvanus Washiali Khwale
Applicant
Mumias Cane Farmers Cooperative Union Limited
Respondent
Alloys Mandu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Lift Warrant of Arrest and Set Aside Orders
Legal Issues
- 1 Whether the warrant of arrest issued against the respondent should be lifted pending hearing and determination of the application.
- 2 Whether the orders of 15.11.2023 issuing the warrant of arrest should be set aside or reviewed.
- 3 Whether the notice to show cause should be fixed for hearing despite non-compliance with previous court orders.
Ratio Decidendi
The Tribunal found that the applicant failed to provide a reasonable explanation for non-appearance, as neither the judgment debtor nor his advocate attended court physically or virtually on the date the warrant of arrest was issued. The applicant also failed to comply with the High Court's order to deposit the decretal sum and made no proposal for settlement. The Tribunal noted a pattern of delay by the judgment debtor through repeated applications without addressing the core obligation to pay the decretal sum. Given the lack of compliance and absence of any payment, the Tribunal held that the application to lift the warrant of arrest and set aside the orders was without merit. The...
Court Disposition
application dismissed with costs; warrant of arrest to remain in force
Orders
- The application dated 15.11.2023 is dismissed with costs.
- The warrant of arrest issued against the respondent remains in force.
Full Case Text
Judgment text and source record
28 paragraphs
Khwale v Mumias Cane Farmers Cooperative Union Limited & another (Tribunal Case 12B of 2018) [2024] KECPT 73 (KLR) (11 January 2024) (Ruling)
Neutral citation: [2024] KECPT 73 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 12B of 2018
BM Kimemia, Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
January 11, 2024
Between
Washington Silvanus washiali Khwale
Claimant
and
Mumias cane Farmers Cooperative Union Limited
1st Respondent
Mr Alloys Mandu, Chairman Mumias Cane Farmers Cooperative Union Limited
2nd Respondent
Ruling
1. The matter for determination is an Application dated 15. 11. 2023, seeking the following prayers:a.That this Application be certified urgent and service thereto be dispensed with at the first instance.b.That the Honourable Court be pleased to lift the Warrants of Arrest as issued against the Respondent herein pending hearing and determination of this Application.c.That the Honourable Court be pleased to set aside and or review its orders of 15. 11. 2023 and the Warrants of Arrest issued therein be lifted.d.That the Notice to Show Cause dated 18. 10. 2023 be listed for hearinge.That costs of this Application be provided for.The same is based on the grounds on the face of the Application and supported by the Affidavit of Rauto E. Susy.
2. The Application is opposed vide the Replying Affidavit of the Claimant deponed on 6. 12. 2023. The Application was ordered to be dispensed with by way of written submissions. The Claimant filed written submissions dated 17. 12. 2023 on 18. 12. 2023 while the Respondent filed written submissions dated 14. 12. 2023 filed on 18. 12. 2023.
3. The Applicant seeks to have the Warrants of Arrest issued against the Respondent lifted and the orders of 15. 11. 2023 issuing a Warrant of Arrest be lifted and Notice to Show Cause be fixed for hearing.
4. The Applicant submitted that the Judgment Debtor was not able to attend court physically since he underwent a surgery at Moi and Teaching Referral Hospital and that the advocate appeared. That Warrant of Arrest was issued and that non-appearance was not deliberate.
5. That the Applicant/Respondent received the Notice to Show Cause but was not able to attend court as he was unwell and his advocate did not also attend court. The Applicant seeks setting aside of the Warrant of arrest issued and the Notice to Show Cause be fixed for hearing.
6. The Claimant submitted that Warrant of Arrest was delivered to Applicant on 22. 4.2021 and there was an Appeal. That on Appeal, there was a condition for the Respondent to deposit the decreed sum and since there was no compliance, the orders were vacated. The High Court dismissed the stay of execution Application of the Warrant of Arrest on 29. 11. 2023.
7. We have considered the submissions of the parties and note that in this matter, judgment was entered on 1. 4.2021. Thereafter, the Respondent filed Application dated 23. 2.2021 and the same was dismissed on 23. 4.2021. The Respondent filed Application dated 3. 11. 2021 and another one on 25. 1.2022. The Application dated 3. 11. 2021 was allowed on 28. 2.2023, while the Application dated 25. 1.2022 was dismissed with costs on 28. 2.2023.
8. The Judgment Debtor was ordered to deposit the decretal sum Kshs. 353,685/= and this order was not complied with.
9. On 15. 11. 2022, the matter came up for Notice to Show Cause and there was no appearance by Judgment Debtor hence Warrant of Arrest was issued against the Chairman, Alloys.On 7. 12. 2023, the Applications dated 15. 11. 2023 and 29. 11. 2023 came up for hearing and the Application dated 29. 11. 2023 was marked as spent.
10. The Applicant seeks for the Warrant of Arrest to be lifted yet there is no proposal on the settlement of the decretal sum. The Applicant neglected to obey the orders of the High Court at Kakamega of 18. 10. 2021 to deposit the decretal sum.There is no payment of the decretal sum, yet the Judgment Debtor was served with the notice to show cause as admitted and failed to appear. The reasons issued by the Judgment Debtor are not a reasonable explanation for failing to appear either by himself or his advocate both physically and virtually on the date that the Warrant of Arrest was issued.
11. The judgment was entered on 1. 4.2021 and to date, there is no single cent paid by the Judgment Debtor. The Judgment Debtors have just been delaying the execution proceedings by filing Applications. After Application, we note that the Judgment Creditor is entitled to the fruits of his judgment and litigation must come to an end.To this end, we note the history of the matter and find that the Application dated 15. 11. 2023 has no merits and is accordingly dismissed with costs.Warrant of Arrest to Remain in Force.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF JANUARY, 2024. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 11. 1.2024HON. BEATRICE SAWE MEMBER SIGNED 11. 1.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 11. 1.2024HON. PHILIP GICHUKI MEMBER SIGNED 11. 1.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 11. 1.2024HON. PAUL AOL MEMBER SIGNED 11. 1.2024Tribunal Clerk JemimahRauto advocate for ApplicantNo appearance for Respondent/Claimant.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 11. 1.2024