[2024] KEHC 8471 (KLR)
The court held that since the judgment debtor did not file any affidavit in opposition to the application, the oral submissions made by counsel could not be considered as valid opposition. The application was therefore unopposed. The court further held that issues raised regarding the subdivision of the property and...
Source-derived case information.
- Citation
- [2024] KEHC 8471 (KLR)
- Parties
- Applicant: Josphat Njoroge Mwangi; Respondent: Home Africa Communities Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E742 of 2020
- Procedural Posture
- Miscellaneous Application / Post Judgment Execution Application
- Outcome
- Application allowed; auctioneer permitted to execute for the balance of the decretal sum.
- Judges
- A Mabeya
- Legal Topics
- Execution of Decree, Attachment of Property, Auctioneer Authorisation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Njoroge Mwangi
Applicant
Home Africa Communities Limited
Respondent
Procedural Posture
Miscellaneous Application / Post Judgment Execution Application
Legal Issues
- 1 Whether the applicant is entitled to orders permitting an identified auctioneer to execute the balance of the decretal sum.
- 2 Whether opposition by the judgment debtor without filing affidavits is valid.
- 3 Whether issues regarding subdivision of the property and payments made should prevent execution at this stage.
Ratio Decidendi
The court held that since the judgment debtor did not file any affidavit in opposition to the application, the oral submissions made by counsel could not be considered as valid opposition. The application was therefore unopposed. The court further held that issues raised regarding the subdivision of the property and payments made are matters to be addressed before the Deputy Registrar at the stage of settling the terms of sale, not at this stage of execution. The court found the application meritorious and allowed the identified auctioneer to proceed with execution for the balance of the decretal sum, subject to compliance with the relevant provisions of Order 22 of the Civil Procedure...
Court Disposition
Application allowed; auctioneer permitted to execute for the balance of the decretal sum.
Orders
- The application dated 17/3/2024 is allowed.
- The identified auctioneer is permitted to execute for the balance of the decretal sum of Kshs. 9,462,727/=.
Full Case Text
Judgment text and source record
20 paragraphs
Mwangi v Home Africa Communities Limited (Miscellaneous Civil Application E742 & 812 of 2020 (Consolidated)) [2024] KEHC 8471 (KLR) (Commercial and Tax) (12 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8471 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Miscellaneous Civil Application E742 & 812 of 2020 (Consolidated)
A Mabeya, J
July 12, 2024
Between
Josphat Njoroge Mwangi
Applicant
and
Home Africa Communities Limited
Respondent
Ruling
1. There is already a judgment in this matter. The judgment creditor has sought orders that an identified auctioneer be permitted to execute the balance of the decretal sum said to be Kshs. 9,462,727/=. This is by a Motion on Notice dated 17/3/2024.
2. Although the said motion was served way back in March, 2024, the same was not responded to. The Judgment debtor decided to oppose it by way of submission from the bar. It is opposed on the grounds that the title sought to be attached has been subdivided into separate plots and that the judgment debtor has not specified how much has been paid.
3. Since the judgment debtor did not file any affidavits, the submissions of learned counsel cannot lie. The application is unopposed. The issues raised by the learned counsel for the judgment debtor are issues that are usually settled by the Deputy Registrar at the stage of settling terms of sale under Order 22 of the Civil Procedure Rules. It is expected that at the time of attachment, the auctioneer would have carried out a search, place it before the Deputy Registrar before she can permit the sale of the attached property.
4. Accordingly, I find that the application is meritorious and I allow the same. The issues of advertisement et cetera are left to the auctioneer to undertake in terms of the relevant provisions of Order 22 of the Civil Procedure Rules.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JULY, 2024. A. MABEYA, FCI ArbJUDGE