[2011] KEHC 928 (KLR)
The court found that the respondent did not comply with the mandatory provisions of Section 94 of the Civil Procedure Act and Order XX rule 20 of the Old Civil Procedure Rules in the execution of the decree. The grounds of opposition filed by the respondent were struck out for non-compliance with procedural...
Source-derived case information.
- Citation
- [2011] KEHC 928 (KLR)
- Parties
- Applicant: Rajni K. Somaia; Respondent: Cannon Assurance (K) Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 82 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Warrants of Attachment and Related Reliefs
- Outcome
- Application allowed in part; prayers 1 and 2 granted.
- Legal Topics
- Execution of Decrees, Warrants of Attachment, Instalment Payment of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajni K. Somaia
Applicant
Cannon Assurance (K) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Warrants of Attachment and Related Reliefs
Legal Issues
- 1 Whether the warrants of attachment and sale were issued in compliance with Section 94 of the Civil Procedure Act and relevant Civil Procedure Rules.
- 2 Whether the applicant is entitled to have the warrants declared null and void and recalled.
- 3 Whether the applicant should be ordered to pay court broker's charges.
Ratio Decidendi
The court found that the respondent did not comply with the mandatory provisions of Section 94 of the Civil Procedure Act and Order XX rule 20 of the Old Civil Procedure Rules in the execution of the decree. The grounds of opposition filed by the respondent were struck out for non-compliance with procedural requirements, leaving the application unchallenged. Consequently, the court granted the prayers to declare the warrants of attachment and sale null and void, and ordered the applicant to pay the court broker's charges if any. The court did not expressly address the instalment payment or postponement of the balance, limiting its orders to the first two prayers of the application.
Court Disposition
Application allowed in part; prayers 1 and 2 granted.
Orders
- Warrants of attachment and sale issued to Keysian Auctioneers are declared null and void and are to be recalled and returned to the court.
- The firm Rajni K. Somaia is ordered to pay for the court brokers charges if any.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. CIVIL APPL. NO. 82 OF 2005
RAJNI K.SOMAIA …………….………………......…………..…….… APPLICANT
VERSUS
CANNON ASSURANCE (K) LIMITED ………..…..................… RESPONDENT
R U L I N G
The application before court is dated the 19th of October, 2005 brought under Section 3, 3A & 94 of the Civil Procedure Act, Order 20 rules 6, 7, 11(2), Order 21 rule 2(2) of Civil Procedure Rules. The application seeks for the following:-
1. That warrants of attachment and sale issued to Keysian Auctioneers be declared null and void and the same be recalled, and returned to the court.
2. That the firm Rajni K. Somaia be ordered to pay for the court brokers charges if any.
3. That Kshs 3,717,697/= be recorded as certified and paid to the applicants leaving a balance of Kshs 5,255,274. 90.
4. That without prejudice to the hearing and determination of KSM HCCA NO. 44 and 45 of 2005 the remaining balance be paid by monthly instalment of Kshs 1,000,000/= or any such instalments as the court may direct, alternatively payment be postponed for three months.
The application is supported by the affidavit of Justus Maina Mukoma and the grounds on the face of the application as follows; the applicant applied for warrants of attachment without compliance with mandatory provisions of Section 94 of the Civil Procedure Act and Order 20 rules 6 & 7 of the Civil Procedure Rules (now replaced); the respondent has already paid the applicant Kshs 3,717,697, the respondent insurers are yet to settle their share as per treaty of participation to enable the respondent to pay the total taxed costs.
Although the respondent/applicant filed grounds of opposition the same was filed after a period of 5 years and no proof that the same was served upon the applicant/respondent. The court in the circumstances strikes out the same for non-compliance with laid down procedures.
The application therefore remains unchallenged. There is no doubt that the respondent did not comply with the mandatory provisions of Section 94 and Order XX rule 20 of the Old Civil Procedure Rules and as such there was non-compliance with the law in the execution of the decree I hereby grant prayer 1 & 2 of the application.
DATED AND DELIVERED THIS 4TH DAY OF NOVEMBER, 2011.
ALI-ARONI
JUDGE
In the presence of:
----------------------- for Applicant(s)
--------------------- for Respondent(s)
AA/hao