[2017] KEHC 7747 (KLR)
The court found that the application for execution and issuance of warrants occurred after the thirty-day stay of execution had lapsed, making the execution lawful. The costs in question had already been settled by the time the application to recall the warrants was filed, rendering the application academic and an...
Source-derived case information.
- Citation
- [2017] KEHC 7747 (KLR)
- Parties
- Appellant: Sinohydro Corporation Ltd; Respondent: George Otieno Waudi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 65 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Recall Warrants of Attachment
- Outcome
- application dismissed with costs to the respondent
- Judges
- EM Muchoki
- Legal Topics
- Stay of Execution, Warrants of Attachment, Consent Orders, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sinohydro Corporation Ltd
Appellant
George Otieno Waudi
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Recall Warrants of Attachment
Legal Issues
- 1 Whether the warrants of attachment issued were unlawful and irregular due to alleged non-disclosure and failure to follow procedure.
- 2 Whether the stay of execution granted by consent was still in force at the time of execution.
- 3 Whether failure to approve the draft decree as per Order 21 Rule 8 of the Civil Procedure Rules rendered the proclamation unlawful.
Ratio Decidendi
The court found that the application for execution and issuance of warrants occurred after the thirty-day stay of execution had lapsed, making the execution lawful. The costs in question had already been settled by the time the application to recall the warrants was filed, rendering the application academic and an abuse of court process. The court further held that the failure to approve the draft decree did not prejudice the appellant/applicant since the costs were consented to and settled. Consequently, there was nothing to recall, and the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 1st September 2016 is dismissed with costs to the respondent.
- This ruling applies mutatis mutandis to Kisumu High Court Civil Appeal No. 66 of 2014 Sinohydro Corporation Limited VS Hellen Amondi Odero.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 65 OF 2014
SINOHYDRO CORPORATION LTD...............................APPELLANT
VERSUS
GEORGE OTIENO WAUDI.........................................RESPONDENT
RULING
This ruling pertains to the Notice of Motion dated 1st September 2016 in which the appellant/applicant sought an order to recall the warrants of attachment issued in this matter for being unlawful and irregular. The gist of the application was that on 26th July 2016 a consent was recorded giving a stay of execution for thirty days but the respondent had allegedly applied for warrants and proclaimed the respondent's motor vehicle prior to the consent being adopted by the Court and without disclosing that the principal sum had been paid. It is also the Appellant/Applicant's case that as the respondent's Advocate did not send a draft decree to his Advocate for approval as required under Order 21 Rule 8 of the Civil Procedure Rules the proclamation was unlawful.
I have considered all the material placed before me. From the record what was being executed were the costs of the appeal which by consent of the Advocates for the parties were taxed at Kshs.90,000/= with a stay of execution for thirty days. It is evident from the record that the application for execution and warrants were issued more than thirty days after the consent was filed in Court. The thirty days stay had therefore lapsed. At the hearing of this application Mr. Oyuko, for the Respondent informed this Court that the costs were settled as soon as the auctioneers went to attach meaning that by the time this application was filed the matter was settled. This application is therefore no more than an academic exercise. It is misconceived and mischievous and if I may also say so is an abuse of the Court process. There is nothing to recall as was done in the case cited by Mr. Ojuro in this case the matter having been fully settled. Moreover the costs having been consented to the appellant/applicant did not suffer any prejudice for want of approval of the decree by his Advocate. The application is dismissed with costs to the respondent and as was agreed this ruling will apply mutatis mutandis to Kisumu High Court Civil Appeal No. 66 of 2014 Sinohydro Corporation Limited VS Hellen Amondi Odero. It is so ordered.
Signed, dated and delivered at Kisumu this 16th day of February 2017
E. N. MAINA
JUDGE
In the presence of:-
Mr. Nyanga for the Applicant
Mr. Echura for the Respondent
C/A: Serah Sidera