[2004] KEHC 2575 (KLR)
The court found that the applicant had provided acceptable reasons for her non-attendance on the scheduled hearing date, as detailed in her affidavit. More importantly, the court noted that Order 21 of the Civil Procedure Rules requires that a judgment debtor be served with notice to show cause before an order for...
Source-derived case information.
- Citation
- [2004] KEHC 2575 (KLR)
- Parties
- Appellant: Tom Omondi; Respondent: Jane Kombe
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 123 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Application to Stay Execution and Review Ex Parte Taxation
- Outcome
- Application allowed; stay of execution granted; orders in terms of prayers (2) and (3) of the application with costs.
- Legal Topics
- Execution of Judgments, Attachment of Salary, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Omondi
Appellant
Jane Kombe
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Stay Execution and Review Ex Parte Taxation
Legal Issues
- 1 Whether the applicant was properly served with notice to show cause before attachment of salary.
- 2 Whether non-attendance by the applicant and her advocate on the hearing date was excusable.
- 3 Whether execution of ex parte taxation should be stayed pending review.
Ratio Decidendi
The court found that the applicant had provided acceptable reasons for her non-attendance on the scheduled hearing date, as detailed in her affidavit. More importantly, the court noted that Order 21 of the Civil Procedure Rules requires that a judgment debtor be served with notice to show cause before an order for attachment of salary is made. The applicant indicated, and the court accepted, that she was not served with such notice. In light of these findings, the court granted a stay of execution of the ex parte taxation pending the hearing of the review application and allowed prayers (2) and (3) of the application with costs.
Court Disposition
Application allowed; stay of execution granted; orders in terms of prayers (2) and (3) of the application with costs.
Orders
- Execution of ex parte taxation is stayed pending hearing of the review application.
- Orders granted in terms of prayers (2) and (3) of the application with costs.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. 123 OF 1999 TOM OMONDI ……………………………………… APPELLANT - V E R S U S – JANE KOMBE ……………………………………… RESPONDENT R U L I N G The applicant was called before Deputy Registrar to show cause why her 1/3 salary should not be attached. The matter was scheduled for hearing on 28/5/04. However on that day she did not make it since, herself and her advocate were not in court at the time for reasons explained in the affidavit.
I have perused the application and affidavits filed for and against. The reasons given for non-attendance are acceptable. The execution of exparte taxation here is stayed pending hearing of the review. It is to be noted that Civil Procedure Rules Order 21 required that a judgment debtor be served to show cause why attachment of salary should be ordered. The applicant indicates that she was not served. Orders are, therefore, granted in terms of prayers (2) and (3) of the application with costs.
Dated this 30th day of July, 2004.
J. KHAMINWA JUDGE 30. 7.08
30. 7.04 J. Khaminwa - Judge Chege – Court clerk Mr. Mabeya holding brief for Gichana Non appearance – Ruling read in his presence.
J. KHAMINWA JUDGE