[2021] KECPT 548 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.160 OF 2016

TARDA SACCO LIMITED..................................CLAIMANT

VERSUS

MARY N. MWEMA........................................RESPONDENT

AND

TARDA SACCO SOCIETY LIMITED..............GARNISHEE

RULING

The Decree Holder has taken out a Notice to show cause dated 9. 7.2019. Vide the said Notice, it wants the Judgment Debtor to be committed to civil jail for failing to honour a decree passed by this Tribunal. That the Decree is for Kshs.5,045, 478. 60/=. It avers that this is the last recourse available to it in its quest to enjoy the fruits of its judgment. Vide its written submissions dated 10. 3.2020, the Decree Holder avers that Section 38 of the Civil Procedure Act (Cap 21) Laws of Kenya provides the legal framework governing committal of persons to civil jail. It then cited the following authorities to support the Notice to show cause.

a. Innocent G. Ondietei – vs- Julius Nakaya Kabole[2019]eKLR;

b. Jane Wangui Gachoka – vs- KCB Limited [2013] eKLR, and

c. Solomon Muriithi Gitundu & Another –vs- Jared Maingi Mburu[2017] eKLR

Judgment Debtor’s Contention

Vide the Replying Affidavit sworn on 30. 10. 2019the Judgment has opposed the Notice to show cause on grounds that she is financially constrained and is thus unable to settle the decree wholly. That she is praying to be allowed to settle the decretal amount by way of monthly installments of Kshs.5000/=. That she work with Tana & Athi River Development Authority earning a net salary of Kshs. 18,802. 30/=.

Issues for determination

The Decree Holder’s Notice to show cause dated 9. 7.2019 has presented the following issues for determination:

a. Whether the Judgment Debtor has shown proper cause why she should not be arrested and committed to Civil Jail;

b. What Orders are available in the circumstances?.

Notice to Show Cause

The right to commit a judgment Debtor to civil jail is provided for under section 38 of the Civil Procedure Act it provides thus:

“ Subject to such conditions and limitations as may be prescribed, the court may, on Application of a Decree Holder, Order execution in a decree-

d - by arrest and detention of any person:-

Provided that where the decree is for payment of money, execution by detention in prison shall not be Ordered unless after giving the Judgment Debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons for reasons to be recorded in writing, this satisfied-

a. That the Judgment Debtor with the object or effect of obstructing or delaying the execution of the decree.

i. Is likely to abscond or leave the local limits of the jurisdiction of the court or;

ii. That the Judgment – Debtor has or had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses, or neglects, or has refused or neglected, to pay the same, but in calculating such means,.....

The court in the case of Jedida Chepkoech Miya (suing as the legal Representative of the Estate of Julius Kipkorir Mutai [deceased] Cherono Beatrice [2018] eKLR interpreted section 38 above in the following terms:

“ As I understand it, the general position in law is that the arrest contemplated under sections 38 and 40 of the Civil Procedure Act is not unconstitutional. All that is required in proceeding under the two provisions is that there has to be strict adherence to the Law. In Jane Wangui Gachoka – vs- Kenya Commercial Bank Limited [2013] eKLR, the petitioner asked the court to decline sections 38 (d) and 40 of the Civil Procedure Act and Order XXI Rules 32, 33 of the Rules which allowed for committal to civil jail for non-payment of a debt as archaic and unconstitutional. In declining to make the declaratory orders, sought by the Petitioner, the court stated as follows:

“[33] The deprivation of liberty sanctioned by sections 38 and 40 of the Civil Procedure Act is permissible and is not in violation of either the constitution or ICPR. The caveat, however, which has been emphasized in all cases set out above is that before a person can be committed to Civil Jail for non-payment of a debt, there must be strict adherence to the procedures laid down in the Civil Procedure Act and Rules, which provide due process safeguards essential to making limitation of the right to liberty permitted in this case acceptable in a free and democratic society.

The court set out the due process referred to in the Jane Wangui Gachoka case in the case of Grand Greek LLC & Another - vs- Nathan Chesang Moson[2015] eKLR as follows:

“ In all cases where Order 22 Rule 18 (1) of the Civil Procedure Rules applies, a Notice must be served upon the person against whom execution is applied requiring him to show cause on a date to be fixed why the decree should not be executed against him. It should be noted, however, that there must have been an Application for execution of a decree for payment of money by arrest and detention in prison of a Judgment- Debtor. And Order 22 Rule 31 will come into play where the court, instead of issuing a warrant of arrest, decides to issue a Notice calling upon the Judgment Debtor to appear before the court on a day to be specified in the Notice and Show Cause why he should not be committed to Prison. But where the judgment debtor does not appear as directed in the Notice, the court will issue a warrant of his arrest. The warrant of arrest is to bring the judgment debtor to court and is not automatic committal to prison because the court will still be required to satisfy itself of all the requirements of Order 22 Rule 33 and Rule 34 of the Civil Procedure Rules. The proceedings under Order 22 Rule 34 Act as the safeguard against denial of liberty in execution of a decree without due process.....”

We have extensively cited the law and authorities so as to satisfy ourselves that all the legal protocols have been followed before the Notice to show cause is heard and determined.

We have perused the record and ascertained that these safeguards have been followed thus far. We have seen an Application for execution of decree. The same sets out the date when the decree was passed (in this case on 15. 8.2017) and the amounts contained in the decree. Subsequently, the arrest Notice to Show Cause was taken out. The Judgment Debtor has responded to it.

Coming to the merits of the Notice to show cause, the question we pause is whether the Judgment Debtor has explained and or shown sufficient cause why she should not be arrested and committed to civil jail. We note that the amounts in the decree is colossal one. While the Judgment Debtor has given a proposal on payment, the same is quite low in the circumstances. We have perused her pay slip and note that her gross pay is Kshs. 87,684/=.

We note that she has liabilities to Faulu Kenya Limited and is paying kshs.30,000/= per month. We also note that she contributes a sum of Kshs.5300/= monthly to the Claimant. The picture painted by the pay slip is that the Judgment Debtor is a person who is able to repay the decretal amount. We do not fathom why she has not taken the initiative to do so. It should not be lost on her that the monies being demanded from her belong to the Claimant’s members and that they are being subjected to unnecessary disdain by the continued failure to repay the same.

We are thus not convinced that the Judgment Debtor has shown cause why she should not be arrested and committed to Civil jail.

Conclusion

The upshot of the foregoing is that we find merit in the Decree Holder’s Notice to show cause dated 9. 7.2020 and hereby issue a warrant of arrest against the Judgment Debtor to be brought to court to show cause why she should not be committed to Civil Jail. The Judgment Debtor to meet the costs of the Notice to show cause.

Ruling signed, dated and delivered virtually this 28th day of January, 2021.

Hon. B. Kimemia Chairperson Signed 28. 1.2021

Mr. B. Akusala Member Signed 28. 1.2021

Mr. R. Mwambura Member Signed 28. 1.2021

Mr. Ajiki holding brief for Ms. Merichi for Judgment Creditor:- Present

No appearance for Judgment Debtor.

Hon. B. Kimemia Chairperson Signed 28. 1.2021