[2022] KEHC 16178 (KLR)

Mango v Ondiek (Civil Appeal 436 of 2019) [2022] KEHC 16178 (KLR) (Civ) (9 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16178 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 436 of 2019

JK Sergon, J

December 9, 2022

Between

Antonina Mango

Appellant

and

George Ondiek

Respondent

(Being an appeal against the ruling and order of Honourable A.M. Obura (Mrs.) (Senior Principal Magistrate) delivered on 15th July, 2019 in MILIMANI Rent Tribunal Case No. 18 of 2016-Arising out of Rent Restriction Tribunal Case No. 769 of 201)

Judgment

1. The respondent herein, being the landlord and decree holder, instituted a claim against the appellant being the tenant and judgment debtor before the Chief Magistrate’s Court and sought for the adoption of the orders issued by the Rent Restriction Tribunal (“the tribunal”) arising out of Rent Restriction Tribunal Case No 769 of 2015 for payment of the decretal sum of Kshs 135,000/= being arrears in rent, and which adoption was done on September 26, 2018.

2. Subsequently, a notice to show cause was issued by the trial court on July 2, 2019 requiring the appellant to show cause as to why she should not be committed to civil jail for failing to pay the sum of Kshs 141,450/= being the balance of the decretal sum together with interest and cost of execution.

3. Upon hearing the parties on the notice to show cause, the trial court ordered that the appellant be committed to civil jail for a period of three (3) months in the event that she does not pay the abovementioned decretal sum forthwith.

4. Being aggrieved by the aforementioned ruling and order, the appellant sought to challenge the same by way of an appeal. Through her memorandum of appeal dated July 30, 2019 the appellant put in the following grounds:i.That the learned trial magistrate erred in law and in fact in committing the appellant to civil jail for not paying a money decree in breach of the provisions of section 38 of the Civil Procedure Act.ii.That the learned trial magistrate erred in law and in fact in not considering that the appellant was not personally served with the notice to show cause for her appearance in court on the July 15, 2019. iii.That the learned trial magistrate erred in law in not considering that no proof of service of the decree in issue on the appellant was filed and no demands for the amounts had been shown or produced before the court to show that there is refusal to pay.iv.That the learned trial magistrate erred in law and in fact in not considering the threshold set by the Civil Procedure Act 2012 in matters concerning money decrees in particular:a.The learned magistrate neglected and/or failed to make due inquiries and satisfy herself as to the appellant’s ability to pay.b.The learned magistrate neglected and/or failed to make due inquiries as to whether the appellant has tried to leave the jurisdiction of the honourable court and/or tried to hide any assets from the honourable court.c.No affidavit of service nor a return of warrants had been filed before the learned magistrate to inform her conclusion on how the appellant was before the court.v.That the learned trial magistrate erred in law and in fact in disregarding the statements of the appellant as to her financial inability to pay and lack of knowledge of the matter before her.vi.That the learned trial magistrate erred in law in not considering that no attempt had been made by the respondent to execute in any other manner before resorting to committal to civil jail.vii.That the learned trial magistrate erred in law and in fact in not appreciating that committal to civil jail is a mode of last resort.

5. This court gave directions on the filing of written submissions on the appeal. From the record, it is apparent that the respondent did not participate in the appeal or file written submissions.

6. The appellant vide her submissions dated September 16, 2022 argues that the trial court acted in breach of the provisions of section 38 of the Civil Procedure Act which list down the procedure for execution, by not making inquiries as to the appellant’s ability to pay the decretal sum, citing the case of Beatrice Wanjiku & another v Attorney General & another[2012] eKLR in which the court reasoned that:“An analysis of the provisions of section 38 of the Civil Procedure Act and the order 22 of the Rules and their application demonstrates the following:a)The process of arrest and detention is not arbitrary. The debtor is given an opportunity to show cause before an order is made by a judicial officer.b)The judgment-creditor can only be committed to civil jail once it is demonstrated that he or she has refused or neglected to pay, is about to abscond or is intent on obstructing or delaying execution of the decree.c)The burden of proof rests on the judgment-creditor to show prove the elements that are necessary for the arrest and committal of the judgment-debtor.d)That arrest and committal is the last resort after other modes of execution have failed.e)There is a right of appeal against the decision of ordering arrest and committal.”

7. The appellant further argues that no proof of service of the notice to show cause upon her had been tendered by the respondent and that this is a factor which the trial court ought to have taken into account before ordering for her committal to civil jail and cites the case of Solomon Muriithi Gitandu & another v Jared Maingi Mburu [2017] eKLR where the court stated that service of a notice to show cause prior to the arrest of a judgment debtor is imperative.

8. It is the submission by the appellant that the trial court ought to have appreciated the fact that the respondent had not made any attempts to execute the decree using other means before ordering for her committal to civil jail.

9. For the above reasons, the appellant urges this court to allow the appeal and to grant the consequent orders sought therein.

10. I have considered the appellant’s submissions and authorities cited on appeal. I have likewise re-evaluated the material placed before the trial court. It is clear that the appeal fundamentally lies against the trial court’s decision ordering for the appellant’s committal to civil jail upon failure to settle the decretal sum. I will therefore deal with the grounds of appeal contemporaneously under the following limbs.

11. The first limb of the appeal concerns itself with whether the learned trial magistrate considered the issue of service of the notice to show cause and the decree issued by the tribunal and adopted as an order of the trial court.

12. In her arguments made before the trial court, the appellant stated that she had no prior knowledge of the claim before the tribunal. However, there is nothing to indicate that the issue of service was raised before the learned trial magistrate and was therefore not an issue for consideration and determination at the trial.

13. That notwithstanding, upon my study of the material on record, I note that the proceedings before the tribunal proceeded ex parte and that the judgment was entered in default of appearance and defence by the appellant, on October 19, 2015.

14. Upon my further study of the material on record, I note that affidavits of service were filed before the trial court to show evidence of service of both the application for adoption of the tribunal’s judgment and the notice to show cause upon the appellant, but that the appellant refused to sign against the copies or return the court copies. The learned trial magistrate acknowledged the existence of the affidavits of service during the hearing of the notice to show cause.

15. Furthermore, the record shows that the appellant attended court for the hearing of the notice to show cause on July 15, 2019 which would imply that she was at all material times aware of the existence of the matter and even indicated that she knew why she was present in court on the abovementioned date.

16. From the foregoing circumstances, I am satisfied that it is more plausible than not that service was effected upon the appellant, though this was not an issue which was raised before the learned trial magistrate for consideration at the time of delivering her ruling.

17. The second and final limb of the appeal touches on whether the learned trial magistrate complied with the provisions of section 38 of the Civil Procedure Act (“the Act”).

18. At the hearing of the notice to show cause, the respondent prayed that the appellant be committed to civil jail for six (6) months for failing to pay the decretal sum of Kshs 144,400/=, whereas the appellant argued that she did not owe the respondent any monies.

19. Upon hearing the parties on the notice to show cause, the learned trial magistrate analyzed that the decree resulting from the judgment by the tribunal had not been challenged and/or set aside and that the appellant had not brought forward any reasonable explanation as to why she should not be committed to civil jail.

20. The learned trial magistrate therefore ordered that the appellant be committed to civil jail for three (3) months unless she settled the decretal sum.

21. Section 38 of the Act expresses that:“Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—(a)by delivery of any property specifically decreed;(b)by attachment and sale, or by sale without attachment, of any property;(c)by attachment of debts;(d)by arrest and detention in prison of any person;(e)by appointing a receiver; or(f)in such other manner as the nature of the relief granted may require:Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons to be recorded in writing, is satisfied—(a)that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-(i)is likely to abscond or leave the local limits of the jurisdiction of the court; or(ii)has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or(b)that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which, by or under any law, or custom having the force of law, for the time being in force, is exempt from attachment in execution of the decree; or(c)that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.”

22. Upon my re-examination of the material on record, it is not in dispute that the decree emanating from the tribunal and adopted by the trial court is monetary in nature.

23. Upon my further re-examination of the material on record, it is apparent that the appellant has not settled the abovementioned decree.

24. Be that as it may, upon my study of the record, I did not come across anything to show that prior to applying for issuance of warrants of arrest which resulted in the notice to show cause, the respondent had unsuccessfully sought to execute the decree through the other modes provided for in the law.

25. There is also nothing on the record to indicate that the learned trial magistrate had considered whether other modes of execution had been expended with before ordering for the committal of the appellant to civil jail.

26. Furthermore, there is nothing on the record to indicate that the learned trial magistrate had taken into consideration the factors listed above under section 38 (supra) such as whether the appellant had means to satisfy the decree in order to ascertain whether the refusal/neglect to comply; if any; is intentional.

27. I concur with the submission by the appellant that committal to civil jail essentially ought to apply as a matter of last resort and which principle the learned trial magistrate ought to have taken into account in making her decision.

28. In addition to the judicial authorities cited in the appellant’s submissions, I will cite the case of Innocent G Ondieki v Julius Nakaya Kabole [2019] eKLR where the court made mention of the following on the above subject:“The court in Grand Creek LLC & Another vs Nathan Chesangmoson [2015] eKLR held that -‘In all cases where order 22 rule 18(1) of the Civil Procedure Rules applies, a notice must be served upon the person against whom execution is applied requiring him to show cause, on a date to be fixed, why the decree should not be executed against him. It should be noted, however, that there must have been an application for execution of a decree for payment of money by arrest and detention in prison of a judgment-debtor. And order 22 rule 31 will come into play where the court, instead of issuing a warrant of arrest, decides to issue a notice calling upon the judgment-debtor to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison. But where the judgment-debtor does not appear as directed in the notice, the court will issue a warrant for his arrest. This rule follows after section 38 and 40 of the Civil Procedure Act. The warrant of arrest is to bring the judgment-debtor to court and it is not an automatic committal to prison because the court will still be required to satisfy itself of all the requirements of order 22 rule 33 and rule 34 of the Civil Procedure Rules. The proceedings under order 22 rule 34 act as the safeguard against denial of liberty in execution of a decree without due process. And courts have comprehensively pronounced themselves on the constitutionality of the procedure of arrest and committal to jail in execution of a decree in not one case…”

29. Upon taking into account all the foregoing factors hereinabove, I am convinced that it would be a proper exercise of my discretion to interfere with the impugned ruling.

30. In the end, I will allow the appeal on merit. Resultantly:i.The ruling/order delivered by Hon A M Obura on July 15, 2019 in Nairobi CMCC Rent Tribunal Case No 18 of 2016 ordering the appellant to be committed to civil jail is hereby set aside.ii.In the circumstances of this appeal, a fair order on costs is to order that each party to bear its own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:………………………………... for the Appellant………………………………... for the Respondent