[2006] KEHC 1748 (KLR)
The court found that the applicant had established a prima facie case for the orders sought, as the judgment against the defendants remained unsatisfied and there was no evidence to controvert the applicant's affidavit. The court exercised its discretion to grant the application for oral examination of the 1st...
Source-derived case information.
- Citation
- [2006] KEHC 1748 (KLR)
- Parties
- Plaintiff: Mathias Kiniale Sifuna; Defendant: Eastern Kitui Stores
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 143 of 1999
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Enforcement Application
- Outcome
- application allowed
- Legal Topics
- Judgment Enforcement, Oral Examination of Directors, Disclosure of Assets, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathias Kiniale Sifuna
Plaintiff
Eastern Kitui Stores
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the plaintiff is entitled to orders for oral examination of the directors of the 1st defendant regarding the judgment debtor's means to satisfy the decree.
- 2 Whether the court should compel production of the 1st defendant's financial documents and asset lists for examination.
- 3 Whether the application is merited in the absence of opposition from the defendants.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the orders sought, as the judgment against the defendants remained unsatisfied and there was no evidence to controvert the applicant's affidavit. The court exercised its discretion to grant the application for oral examination of the 1st defendant's directors and production of financial documents, holding that such orders are appropriate to facilitate execution of the decree where the judgment debtor has failed to pay. The absence of opposition from the defendants further justified granting the orders as prayed.
Court Disposition
application allowed
Orders
- The directors of the 1st defendant are to be orally examined as to whether any or what debts are owing to the judgment debtor and whether the judgment debtor has any and what property or means of satisfying the decree.
- The directors of the 1st defendant are to produce for examination its list of debtors, bank statements for January 2005 to May 2005, audited accounts for 2003 to 2004, and a list of its movable and immovable assets for examination.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Suit 143 of 1999
MATHIAS KINIALE SIFUNA....................................................................................PLAINTIFF
VS
EASTERN KITUI STORES & 2 OTHERS............................................................DEFENDANTS
RULING
By an application dated 2nd December 2005 by way of Chamber Summons, pursuant to the Provisions of Section 3A of the Civil Procedure Act, and Order XX1 Rule 36 and 91 of the Civil procedure Rules, the applicant seeks orders that:
(a) Service of this application be dispensed with in the first instance.
(b) This court be pleased to make an order and summon the directors of the 1st defendant in person to be orally examined as whether any or what debts are owing to the judgment debtor and whether the judgment debtor has any and what property or means of satisfying the decree.
(c) That this court be pleased to make an order that the directors of the 1st defendant produce for examination its list of debtors, bank statements for the months of January 2005 to May, 2005, its audited accounts for the year 2003 to 2004 and a list of its movable and immovable assets for examination of the business and other registered related business.
(d) That costs of this application be provided for.
The application is based on the grounds that:
(1) The plaintiff obtained judgment against the defendants on the 18th day of June 2004, and the decree dated 8th September 2004 indicate that the defendants owe the Plaintiff Ksh.3,703,630/= costs inclusive an amount which is outstanding and continues to attract interest at Court rates.
The application is predicated upon the annexed affidavit of Andrew W. Kituyi, advocate sworn on 6th December 2005.
The application was served on the firm of Wekesa & Co. Advocates for the respondent as per the affidavit of service of Elias Wesonga sworn on 8th March 2006. At the hearing there was no representation from the said firm. On application, I allowed the applicant leave to proceed ex-parte.
The applicant submitted that on 18th June 2004, judgment was entered for the plaintiff against the defendant in the sum of Ksh.3,740,000/= plus costs and interest.
That the decree drawn on 8th September, 2004 indicate that the debt due and owing was at that point in time Ksh.3,703,630/= which was inclusive of costs and interest as per copy of the decree marked A. That since the entry of judgment the defendant has not paid the decretal amount.
It was the applicant’s case that the first defendant has means to pay the debt but is refusing or ignoring to settle the same, hence this application.
I have scanned through the application and particularly annextures A and B. I have equally looked at the law on the point.
I take the view that the application is merited in the absence of evidence to controvert the applicant’s evidence embodied in the affidavit in support. Accordingly, I grant the application in terms of prayer (b), (c) and (d).
The applicant be at liberty to take a date in the Registry for the examination of the directors.
Dated and Delivered at Bungoma this 16th day of March 2006.
N.R.O. OMBIJA
JUDGE
Mr Watanga for Kituyi for the Applicant/Plaintiff
Mr Kasamani for the Respondent/Defendant