[2006] KEHC 1749 (KLR)
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...
Source-derived case information.
- Citation
- [2006] KEHC 1749 (KLR)
- Parties
- Plaintiff: Mathias Kiniale Sifuna; Defendant: Eastern Kitui Stores; Defendant: 2 Others
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 143 of 1999
- Procedural Posture
- Civil Suit / Ruling on Ex Parte Oral Application for Warrant of Arrest
- Outcome
- Application declined; applicant directed to file proper application within 30 days.
- Judges
- CA Ombija
- Legal Topics
- Execution of Decrees, Oral Examination of Judgment Debtor, Application Procedure
- 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
2 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Ex Parte Oral Application for Warrant of Arrest
Legal Issues
- 1 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.
- 2 Whether the applicant must file a formal application by Notice of Motion for the orders sought.
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.
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.
Full Case Text
Judgment text and source record
14 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 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