[2022] KEHC 15820 (KLR)
The court found that the applicant had complied with the previous order to initiate the process of opening a joint account for deposit of the decretal sum, as evidenced by correspondence seeking cooperation from the respondent's advocates. The respondent's failure to cooperate frustrated the process, and thus the...
Source-derived case information.
- Citation
- [2022] KEHC 15820 (KLR)
- Parties
- Appellant: South Nyanza Teachers Savings & Credit Co-operative Society Ltd; Respondent: Maseno University
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E105 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application Regarding Execution and Attachment
- Outcome
- Application allowed. Attachment declared illegal. Goods to be released to applicant. Costs to applicant.
- Judges
- KW Kiarie
- Legal Topics
- Execution of Decrees, Attachment of Property, Compliance With Court Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
South Nyanza Teachers Savings & Credit Co-operative Society Ltd
Appellant
Maseno University
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application Regarding Execution and Attachment
Legal Issues
- 1 Whether the attachment of the applicant's property by the respondent was lawful.
- 2 Whether the applicant complied with the court's previous orders regarding deposit of decretal sums.
- 3 Whether the respondent frustrated the process of opening a joint account as ordered by the court.
Ratio Decidendi
The court found that the applicant had complied with the previous order to initiate the process of opening a joint account for deposit of the decretal sum, as evidenced by correspondence seeking cooperation from the respondent's advocates. The respondent's failure to cooperate frustrated the process, and thus the applicant could not be faulted for non-compliance. Consequently, the subsequent attachment of the applicant's property was unlawful, as it was based on erroneous records and executed without proper authority or procedure. The court held that the respondent's conduct undermined the integrity of the judicial process and ordered the unconditional release of the attached goods to the...
Court Disposition
Application allowed. Attachment declared illegal. Goods to be released to applicant. Costs to applicant.
Orders
- The attached goods are to be released unconditionally to the applicant.
- Costs of this application awarded to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
South Nyanza Teachers Savings & Credit Co-operative Society Ltd v Maseno University (Civil Appeal E105 of 2021) [2022] KEHC 15820 (KLR) (30 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15820 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Appeal E105 of 2021
KW Kiarie, J
November 30, 2022
Between
South Nyanza Teachers Savings & Credit Co-operative Society Ltd
Appellant
and
Maseno University
Respondent
Ruling
1. On June 16, 2022 this court delivered a ruling in this matter with the following orders:6. From the foregoing, I make the following order:The applicant to deposit the decretal amount together with the agreed cost in an interest earning bank account in the names of both counsel on record for the parties within 15 days of this ruling. Failure to comply, then the respondent will be at liberty to commence execution.
2. The appellant/applicant on July 12, 2022 moved the court by way of notice of motion pursuant to order 22 rule 18 (1), order 40 rules 1 & 2, order 50 rules 1 & 2 as read with sections 1A & 3A of the Civil Procedure Act.
3. The following orders are being sought:a.That this application be certified urgent and prayers 1& 2 be granted. [Spent]b.That this court to order the respondent to immediately return to the applicant all the items that were attached unlawfully.c.That the court to declare that the attachment levied by M/S Odongo Investment Auctioneer was done illegally and therefore is null and void.d.That the court to make a finding that the attachment levied against the applicant on July 12, 2022 by M/S Odongo Investment Auctioneer was based on erroneous records as the bill of costs was never taxed at Kshs 196,409. 20e.That the court further make a finding that the interest and further costs charged on the warrants are null and void.
4. The application was based on the following grounds:a.That the applicant complied with the order of the court and put in motion the process to open a joint account.b.That the respondent frustrated the said process by refusing to provide the bank with the necessary details to operationalize the joint account.c.That the amount of money claimed was not authorized by the court.d.That there ought to have been a fresh proclamation before the attachment.
5. The respondent opposed the application and contended that it was the applicant/appellant who failed to comply with the orders of the court.
6. I have seen a letter dated July 12, 2022 addressed to the firm of Owiti Otieno & Ragot Advocates. The letter is seeking to be supplied with audited books to enable them open an account as requested. I therefore find that the applicant complied with the court order except that the account opening was not concluded due to noncooperation by the firm of Owiti Otieno & Ragot Advocates.
7. This therefore means that the subsequent attachment was illegal and the under hand tactics employed by the respondent ought to be deprecated strongly. This erodes the faith in court system.
8. The attached goods are ordered to be released unconditionally to the applicant. Costs of this application to the applicant.
DELIVERED AND SIGNED AT HOMA BAY THIS 30TH DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE