[2011] KEHC 3506 (KLR)
The court held that the Notice of Motion was procedurally improper because the suit had already been conclusively determined by consent judgment and decree. The applicant's attempt to seek further orders by interlocutory application was misplaced, as enforcement of a decree must be pursued through execution...
Source-derived case information.
- Citation
- [2011] KEHC 3506 (KLR)
- Parties
- Plaintiff: Pan A. and Equipment Limited; Defendant: Nairobi City Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6 of 2002
- Procedural Posture
- Civil Case / Ruling on Post Judgment Notice of Motion
- Outcome
- application dismissed
- Judges
- CN Mugo
- Legal Topics
- Enforcement of Judgments, Declaratory Orders, Consent Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pan A. and Equipment Limited
Plaintiff
Nairobi City Council
Defendant
Procedural Posture
Civil Case / Ruling on Post Judgment Notice of Motion
Legal Issues
- 1 Whether an interlocutory application can be used to enforce a decree after judgment has been entered and the suit concluded.
- 2 Whether the applicant is entitled to a declaratory order for the sum allegedly retained by the respondent or its subsidiary.
Ratio Decidendi
The court held that the Notice of Motion was procedurally improper because the suit had already been conclusively determined by consent judgment and decree. The applicant's attempt to seek further orders by interlocutory application was misplaced, as enforcement of a decree must be pursued through execution proceedings, not by reopening the concluded suit. Furthermore, any claim for a declaratory order regarding sums allegedly retained by the respondent or its subsidiary must be brought in a separate declaratory suit, where the applicant can demonstrate entitlement to the sum claimed. The provisions cited by the applicant did not support the relief sought. Consequently, the application...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 2nd June, 2010 is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 6 OF 2002
PAN A. AND EQUIPMENT LIMITED............................................................................PLAINTIFF
VERSUS
NAIROBI CITY COUNCIL............................................................................................DEFENDANT
RULING
The Applicant in the Notice of Motion dated 2nd June, 2010 is theDecree Holder in this suit wherein a consent judgment was recorded on 28th February, 2002 and a decree in terms thereof issued on 5th March 2002. The decretal sum has been settled save for a sum of Kshs. 686,450. 15/= in respect of which the present application has been filed, praying that:
1. The Defendant and/or its subsidiary, Nairobi City Water & Sewerage Co. Ltd do forthwith pay to the Plaintiff Kshs. 686,450. 15/= together with interest thereon at 22% per annum from 8th September 2005 until payment in full.
2. The costs of this application be met by the Plaintiff.
I have had a look at the grounds cited in support of the application and the depositions of learned counsel for the Applicant, Mr. Christopher Ndolo Mutuku in the supporting affidavit sworn on 2nd June 2010. The application was initially listed for hearing before the Hon. Lady Justice Koome before her ladyship’s transfer from the Milimani Commercial Courts. The honourable judge had directed that the parties herein do file written submissions in the application of which only the Plaintiff’s submissions were filed on 8th October 2010. It is not clear whether the Respondent was served with the submissions. A judgment date was reserved on 21st October 2010.
In the course of preparing the judgment and upon perusal of the record, I have formed the opinion that the Notice of Motion is misplaced in that the suit having concluded and a judgment and decree entered accordingly, the suit has been conclusively determined and an interlocutory application cannot be filed as a way of enforcement of the decree.
It is clear from Ground 2 of the application that, in essence, what the Applicant seeks is a declaratory order as regards the money retained by the
Respondent and/or its subsidiary when settling the decretal sum. In my view, such an order can only be made in a declaratory suit wherein the Applicant demonstrates that the sum claimed is due and payable and is not the subject of any deduction as alleged.
Except for subrule 6(2) of Order XX1V, which I still find not useful in the circumstances of this case, the provisions invoked to move the court do not apply. For the reasons stated herein I am not persuaded of the merits of the application and the same is hereby dismissed.
DATED SIGNED and DELIVERED at NAIROBI this 11THday of MARCH, 2011
M. G. MUGO
JUDGE
In the presence of:
Miss Kahoro holding brief for Mr. MutukuFor the Applicant
No appearanceFor the Respondent