[2023] KECPT 63 (KLR)
The Tribunal found that the applicant had obtained judgment and a decree against the respondent, who had failed to satisfy the decretal amount and was actively transferring property to defeat execution. The application for a prohibitory order was unopposed, and the respondent had not taken any steps to set aside the...
Source-derived case information.
- Citation
- [2023] KECPT 63 (KLR)
- Parties
- Applicant: Safaricom Savings & Credit Co-Operative Society Ltd; Respondent: Tom Onyango Macakiage
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 368 (E173) of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Unopposed Notice of Motion for Prohibitory Order
- Outcome
- Application allowed as prayed with costs to the applicant.
- Judges
- M Mwatsama, M. Mbeneka, Gitonga Kamiti
- Legal Topics
- Prohibitory Orders, Execution of Judgment, Attachment of Property, Immovable Property, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safaricom Savings & Credit Co-Operative Society Ltd
Applicant
Tom Onyango Macakiage
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Unopposed Notice of Motion for Prohibitory Order
Legal Issues
- 1 Whether a prohibitory order should be issued against LR No KABETE/KIBICHIKO/3826 to prevent its disposal by the judgment-debtor.
- 2 Whether the application for a prohibitory order is merited in the absence of opposition from the respondent.
Ratio Decidendi
The Tribunal found that the applicant had obtained judgment and a decree against the respondent, who had failed to satisfy the decretal amount and was actively transferring property to defeat execution. The application for a prohibitory order was unopposed, and the respondent had not taken any steps to set aside the default judgment or respond to the application. The Tribunal applied Order 22 Rule 48(1) of the Civil Procedure Rules, which allows for attachment of immovable property by prohibitory order to prevent its transfer or charge. The Tribunal concluded that the applicant had established sufficient grounds for the grant of the prohibitory order, and allowed the application as prayed...
Court Disposition
Application allowed as prayed with costs to the applicant.
Orders
- A prohibitory order is issued against LR No KABETE/KIBICHIKO/3826 situated in Kiambu, prohibiting sale, transfer, charging, or dealing in any way with the property by the respondent or any person acting under his direction.
- The prohibitory order shall be registered against the title at the Kiambu Lands Registry.
Full Case Text
Judgment text and source record
19 paragraphs
Safaricom Savings & Credit Co-operative Society Ltd v Macakiage (Tribunal Case 368 (E173) of 2021) [2023] KECPT 63 (KLR) (16 February 2023) (Ruling)
Neutral citation: [2023] KECPT 63 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 368 (E173) of 2021
M Mwatsama, Vice Chair, M. Mbeneka & Gitonga Kamiti, Members
February 16, 2023
Between
Safaricom Savings & Credit Co-Operative Society Ltd
Claimant
and
Tom Onyango Macakiage
Respondent
(Coram before Hon. Mjeni Mwatsama-D/Chairperson, Gitonga Kamiti and M.Mbeneka)
Ruling
1. The Application for determination is Notice of Motion dated February 15, 2022 filed on March 7, 2022. The Application seeks for;a.That, a prohibitory order be issued against LR No KABETE/KIBICHIKO/3826 situated in Kiambu against sale, transfer, charging of the property, or dealing in any way of the property by the Respondent, his agents, servants and or any other persons working under the direction of the Respondent/judgment debtor.b.That, a prohibitory order issued be registered against the title at the Kiambu Lands Registry.c.That, costs be in the cause.The Application is supported by the Affidavit of Haggai Chimei sworn on February 15, 2022. He states the Claimant obtained Judgment in this matter and extracted a decree and certificate of costs dated November 5, 2021. The Respondent/Judgment-Debtor was to pay the decretal amount but later declined.The Judgment-Debtor in a bid to defeat proclamation moved the property.The Judgment-Debtor has been transferring his property in an effort to defeat execution and thus if prohibitory orders are not issued there is a risk of Respondent/judgment-Debtor disposing off the property LR No Kabete/Kibichiko/3826.
2. The Respondent/Judgment-Debtor had not at the time of writing this ruling filed a response to the Application.The Application as it stands is unopposed we further note default judgment was entered on November 1, 2021 and there has been no attempt by Respondent/Judgment-Debtor to set it aside if at all or respond to the Application by Claimant/Applicant as it mere.The Respondent are clearly not interested in the matter.
3. The orders sought in the Application is an order of prohibition under Order 22 Rule 48(1) Civil Procedure Rule which states;-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.Thus the Application not being opposed we allow the Application dated as prayed with cost to the Claimant/Applicant.
RULING, READ AND DELIVERED VIRTUALLY ON 16TH FEBRUARY, 2023. HON. MJENI MWATSAMA D/CHAIRPERSON SIGNED 16. 2.2023MARIA MBENEKA MEMBER SIGNED 16. 2.2023GITONGA KAMITI MEMBER SIGNED 16. 2.2023In the presenceChimei Advocate for the ClaimantNo Appearance for RespondentJ. Mutai - C/AssistantSignedHon. Mjeni MwatsamaDeputy Chairperson16/2/2023