[2012] KEHC 3017 (KLR)
The court found that the plaintiff had obtained a partial judgment against the 2nd defendant for Kshs.9,087,724.50, which remained unsatisfied. The only asset identified as capable of satisfying the decree was L.R. 12422/600 (I.R. 88318), registered in the name of the 2nd defendant. The court held that, in...
Source-derived case information.
- Citation
- [2012] KEHC 3017 (KLR)
- Parties
- Plaintiff: Mode Development Co. Limited; Defendant: Diplomatic Housing & Construction Co. Ltd.; Defendant: Balozi Housing Co-operative Society Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 528 of 2012
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Prohibitory Order and Execution
- Outcome
- Application allowed as prayed with costs in the cause.
- Judges
- DO Ogembo
- Legal Topics
- Execution of Judgments, Prohibitory Orders, Attachment of Property, Judgment Debts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mode Development Co. Limited
Plaintiff
Diplomatic Housing & Construction Co. Ltd.
Defendant
Balozi Housing Co-operative Society Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Prohibitory Order and Execution
Legal Issues
- 1 Whether a prohibitory order should issue over L.R. No. 12422/600 (I.R. 88318) to preserve the property for execution of the judgment.
- 2 Whether the plaintiff is entitled to execute for the partial judgment awarded against the 2nd defendant.
Ratio Decidendi
The court found that the plaintiff had obtained a partial judgment against the 2nd defendant for Kshs.9,087,724.50, which remained unsatisfied. The only asset identified as capable of satisfying the decree was L.R. 12422/600 (I.R. 88318), registered in the name of the 2nd defendant. The court held that, in accordance with Order 22 Rule 48(1) of the Civil Procedure Rules, a prohibitory order was appropriate to prevent the transfer or charging of the property and to preserve it for execution. As the application was unopposed and the requirements for granting such an order were met, the court allowed the application as prayed, with costs in the cause.
Court Disposition
Application allowed as prayed with costs in the cause.
Orders
- A prohibitory order is issued over L.R. No. 12422/600 (I.R. 88318) registered in the names of Balozi Housing Co-operative Society Limited.
- The plaintiff is allowed to execute for the partial judgment forthwith.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
CIVIL CASE 528 OF 2012
MODE DEVELOPMENT CO. LIMITED:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
- VERSUS -
DIPLOMATIC HOUSING &CONSTRUCTION CO. LTD.::::::::::::::::::1ST DEFENDANT
BALOZI HOUSING CO-OPERATIONSOCIETY LTD.::::::::::::::::::::::::2ND DEFENDANT
R U L I N G
1. This is a Ruling on the Notice of Motion dated 16th May 2012. It is brought under Section 1A,1Band3A of the Civil Procedure Rules and Order 22 Rule 48 and Order 6 Rule 3 (1) of the Civil Procedure Rules. The application seeks the following orders:-
a)That this application be heard ex-parte.
b)That a prohibitory order do issue over L. R. No. 12422/600 (I.R. 88318) registered in the names of Balozi Housing Co-operative Society Limited.
c)The Plaintiff be allowed to execute for the partial judgment forthwith.
d)The costs of this application be in the cause
2. The application is based on the following grounds:-
a)Partial judgment was entered in favour of the Plaintiff against the 2nd Defendant for Kshs.9,087,724. 50 with interest at court rates from 27th July 2009 until payment in full on 8th December 2011.
b)The 2nd Defendant has not settled the said judgment at all.
c)That after investigations the Plaintiff has confirmed that the sole asset of the 2nd Defendant/Judgement Debtor capable of satisfying the decree is:- L. R. 124422/600 (I.R. 88318).
d)That it is fair and just that a prohibitory order do issue over the said property to preserve the property and the process of execution commences.
3. The application is supported by affidavit of ERICK AGBEKO sworn on 16th May 2010. Annexed to it are:-
The court Ruling marked “EA” dated 8th December 2011 under which Kshs.9,087,724. 50 was awarded to the Plaintiff against the 2nd Defendant.
A copy of search on Title showing the 2nd Defendant as the owner of L.R. 12422/600 (I.R. 88318) marked “EA2”.
4. I have considered the application carefully. It is an ex-parte process and is not opposed. Order 22 Rule 48 (1) states as follows:-
48 (1)
“Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the Judgment Debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property.”
5. The application is well founded. I allow it as prayed with costs in the cause.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 16TH DAY OF JULY 2012
E. K. O. OGOLA
JUDGE
PRESENT:
Njuguna for the Plaintiff
N/A for the Defendant
Teresia – Court Clerk