[2008] KEHC 3472 (KLR)
The court found that the warrants of attachment were issued before the application for execution was made and before the necessary fees were paid, in clear violation of Order XXI Rule 6 of the Civil Procedure Rules. The respondent failed to provide any explanation or rebuttal to the applicant's factual assertions...
Source-derived case information.
- Citation
- [2008] KEHC 3472 (KLR)
- Parties
- Appellant: Rinald Simiyu Ng'ang'a; Respondent: Benjamin Kuloba Osea
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 9 of 2007
- Procedural Posture
- Civil Appeal / Interlocutory Application Ruling
- Outcome
- application allowed
- Legal Topics
- Execution of Judgments, Irregular Warrants, Stay of Execution, Court Process Abuse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rinald Simiyu Ng'ang'a
Appellant
Benjamin Kuloba Osea
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application Ruling
Legal Issues
- 1 Whether the execution levied against the appellant's livestock was lawful and regular.
- 2 Whether warrants of attachment issued before the application for execution and payment of fees are valid.
- 3 Whether the execution process should be set aside due to procedural irregularities.
Ratio Decidendi
The court found that the warrants of attachment were issued before the application for execution was made and before the necessary fees were paid, in clear violation of Order XXI Rule 6 of the Civil Procedure Rules. The respondent failed to provide any explanation or rebuttal to the applicant's factual assertions and annexures. The court held that this procedural irregularity and illegality alone sufficed to set aside the execution process, as the court cannot condone such a gross abuse of its process. The decision was further supported by appellate authority, which mandates that irregular executions be set aside to maintain the integrity of judicial proceedings.
Court Disposition
application allowed
Orders
- The animals attached by Ongumwe Auctioneers are to be forthwith released to the appellant pending hearing and determination of the appeal.
- In default, the entire proceeds of sale are to be deposited in court pending the determination of the appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Civil Appeal 9 of 2007
RINALD SIMIYU NG’ANGA :::::::::::::::::: APPELLANT
VRS
BENJAMIN KULOBA OSEA :::::::::::::::: RESPONDENT
(Arising from Original BGM SPM CC NO.235 of 2004)
RULING
This is the ruling in respect of the application dated 14. 3.2007 in prayers (a) and (b) have already been spent and so this ruling is only in respect of prayers (c) and (d) as hereunder;
( c ) That the animals attached by Ongumwe Auctioneers be forthwith released to the appellant pending hearing and determination of the appeal herein.
(d) That in default the entire proceeds of sale be deposited in court pending the determination of the appeal herein.
The same is premised on the 5 grounds on the face of it and the Supporting Affidavit of Ronald Simiyu Ng’ang’a – the applicant herein. The same is opposed by counsel by way of grounds of opposition dated 3. 4.2007 which are nonetheless very general and which has not responded to the various matters of fact raised in the applicant’s affidavit. The thrust of the application is to the effect that the execution levied against the applicant’s livestock was unlawful and fraudulent. He has attached copies of the executed warrants (RSN 1 a & b) which are dated 14. 2.2007. According to annexure RSN 2 (b) however the application for execution was made on 19. 02. 2007 and that is the date it was paid for, counsel for the applicant urged the court to find that the warrants could not have been lawfully issued 5 days before the application for execution. I have looked at the said annexures myself and in the absence of any explanation from the respondent, I am satisfied that the warrants could not have been issued before they were applied for and the necessary fees paid. This flouted the explicit provisions of OXXI. R.6 of the Civil Procedure Rules. There is therefore an illegality which is clearly manifested through these annexures. Even the proclamation was done apparently before the application for execution had been made. This illegality and irregularity alone even in the absence of any other ground suffices to have the execution process herein set aside. My view is fortified by the decision of the court of appeal in LAKELAND MOTORS LIMITED –V- HABHAJAN SINGH SEMBI (Civil Appeal NO.11/98 UR) where the Court of Appeal set aside the Execution process that was found to have been irregularly carried out. As I stated earlier on, the deponments by the applicant in his affidavit have not been controverted, and the annexures also speak for themselves. For the aforegoing reasons, I am satisfied that this court cannot countenance such a gross abuse of the court process.
The application dated 14. 3.2007 is therefore allowed in terms of prayers ( c ) and (d) thereof. The costs will be in the cause.
W. KARANJA
JUDGE
DELIVERED, Dated and Signed at Bungoma this 11th day of March, 2008 in the presence of both counsels.