MATHIAS KINIALE SIFUNA v EASTERN KITUI STORES & 2 others [2006] KEHC 1749 (KLR)
- Citation
- [2006] KEHC 1749 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- CA Ombija
- Case number
- Civil Suit 143 of 1999
- Language
- English
More details
- Court
- High Court
- Panel
- CA Ombija
- Case number
- Civil Suit 143 of 1999
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the procedure adopted by the applicant, namely making an ex-parte oral application for a warrant of arrest, was not provided for under Order XV, Rule 10(3) of the Civil Procedure Code. Instead, the proper procedure required the applicant to file a formal application by way of Notice of Motion in accordance with Order L, Rule 1. As there was no such application before the court, the court declined to grant the orders sought and directed the applicant to make the necessary application within 30 days.
Court disposition
Application declined; applicant directed to file proper application within 30 days.
Orders
- The applicant is directed to make the necessary application within 30 days from the date of this order.
02
Material facts
Parties
Mathias Kiniale Sifuna
PlaintiffEastern Kitui Stores
Defendant2 Others
Defendant03
Procedural history
Posture
Civil Suit / Ruling on Ex Parte Oral Application for Warrant of Arrest
04
Questions and positions
Legal issues
- 01
Whether an ex-parte oral application for a warrant of arrest against directors of the first defendant is procedurally proper under Order XV, Rule 10(3) of the Civil Procedure Code.
- 02
Whether the applicant must file a formal application by Notice of Motion for the orders sought.
Party arguments
- Applicant
- The applicant sought, by ex-parte oral application, the issuance of a warrant of arrest against the directors of the first defendant for oral examination regarding debts due and the manner of satisfying the decree.
- Respondent
- No formal arguments from the respondents are recorded as the application was ex-parte.
05
Court’s reasoning
Legal principles
- 01
Order L, Rule 1 of the Civil Procedure Code
All applications to the court, unless expressly provided otherwise, must be by motion and heard in open court.
- 02
Order XV, Rule 10(3) of the Civil Procedure Code
Order XV, Rule 10(3) does not provide for ex-parte oral applications for warrants of arrest in execution proceedings.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the procedure adopted by the applicant, namely making an ex-parte oral application for a warrant of arrest, was not provided for under Order XV, Rule 10(3) of the Civil Procedure Code. Instead, the proper procedure required the applicant to file a formal application by way of Notice of Motion in accordance with Order L, Rule 1. As there was no such application before the court, the court declined to grant the orders sought and directed the applicant to make the necessary application within 30 days.
Obiter and limits
- It is instructive to note that the procedure to bring such an application is not provided for under Order XV, Rule 10(3).
Court disposition
Application declined; applicant directed to file proper application within 30 days.
- The applicant is directed to make the necessary application within 30 days from the date of this order.
Source and reliance status
High Court
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
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 ex-parte oral application, pursuant to the provisions of order XV, Rule 10(3) of the Civil Procedure Code, the applicant sought orders for issuance of warrant of arrest against the directors of the first defendant herein who were summoned to appear in person for oral examination as to the debts due and owing to the judgment debtor herein and if so the manner of satisfying the decree.
It is instructive to note that the procedure to bring such an application is not provided for under Order XV, Rule 10(3). Accordingly, an applicant falls back to Order L, Rule 1 of the Civil Procedure Code which provides:
“All applications to the court, save where otherwise expressly provided for under these Rules, shall be by motion and shall be heard in open court”.
I have no application by way of Notice of Motion upon which I can act.
Accordingly, I direct the applicant to make the necessary application within 30 days from the date of this order.
DATED and DELIVERED at BUNGOMA this 14th day of June 2006.
N.R.O. OMBIJA
JUDGE
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