[2012] KEHC 2523 (KLR)
The court found that section 263A of the Local Government Act expressly bars execution by way of notice to show cause against local authorities. The Deputy Registrar's earlier decision upholding this position was correct, and the subsequent proceedings before Mr. Ekhubi, which allowed such execution, were contrary...
Source-derived case information.
- Citation
- [2012] KEHC 2523 (KLR)
- Parties
- Applicant: The Town Clerk Municipal Council of Mombasa; Respondent: Makupa Chemist Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 10 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application allowed; proceedings before Deputy Registrar set aside as a nullity.
- Legal Topics
- Stay of Proceedings, Execution of Judgments, Local Authorities Liability, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Town Clerk Municipal Council of Mombasa
Applicant
Makupa Chemist Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether execution by notice to show cause is available against a local authority under section 263A of the Local Government Act.
- 2 Whether the proceedings before the Deputy Registrar leading to the order of 21st May, 2012 were valid.
- 3 Whether a stay of proceedings should be granted pending appeal.
Ratio Decidendi
The court found that section 263A of the Local Government Act expressly bars execution by way of notice to show cause against local authorities. The Deputy Registrar's earlier decision upholding this position was correct, and the subsequent proceedings before Mr. Ekhubi, which allowed such execution, were contrary to law and therefore a nullity. The court set aside those proceedings and directed that the proper course was to proceed with the contempt application, as the applicant had failed to comply with the order of mandamus to pay the adjudged sum. The court emphasized that statutory protections for local authorities must be observed and that execution procedures not permitted by law...
Court Disposition
Application allowed; proceedings before Deputy Registrar set aside as a nullity.
Orders
- The proceedings before Mr. Ekhubi leading to the ruling of 21st May, 2012 are set aside.
- The parties are to set down the application for contempt for hearing within twenty-eight days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMOMBASA
MISCELLANEOUS CIVIL APPLICATION 10 OF 2012
THE TOWN CLERK MUNICIPAL COUNCIL OF MOMBASA.....................................APPELLANT/APPLICANT
VERSUS
MAKUPA CHEMIST LIMITED..........................................................................................................RESPONDENT
Coram:
Mwera J.
Kibara for Applicant
Kioko for Respondent
Court Clerk Furaha
RULING
By a notice of motion dated 19th June, 2012, the appellant sought orders to stay proceedings following an order the deputy registrar made on 21st May, 2012 in HCCC 39/2002.
During arguments it transpired that the said order followed a notice to show cause (NTSC) directed to the applicant council in respect of a debt it owes the respondent.
Mr. Kibara told the court that a contempt application was filed in this court but before it was heard the court instead directed that a notice to show cause do issue to the applicant’s Town Clerk to state why execution should not issue against the council. That a similar procedure had once issued in HCCC 39/2002 but Mr. Omburah, Deputy Registrar, had been convinced that as per section 263A of the Local Government Act, that course to execute did not apply to the applicant. And because this court had directed a similar course of execution to proceed once again the applicant had raised a preliminary objection under section 263A in which it was overruled by Mr. Ekhubi, citing this court’s order to issue another notice to show cause. This application is to stay proceedings until the appeal against that dismissal by Mr. Ekhubi, is heard.
After hearing both sides what came through is that the applicant was adjudged to owe money to the respondent. A decree was issued on 20th July, 2009. It did not pay up. A notice to show cause issued and Mr. Omburah upheld the argument that that course of execution was barred under the said section 263A. The respondent then applied for an order of mandamus to command the applicant’s Town Clerk to pay the adjudged sum. Okwengu J., as she then was, issued such an order. Still payment was not forthcoming. Then the respondent filed an application to cite the applicant’s Town Clerk for contempt. Before the proceedings for contempt got under way, the Town Clerk intimated that he would make payment. He did nothing and that is when the “second” notice to show cause was directed to issue.
From all the foregoing, execution as against the applicant local authority and by notice to show cause in the present case is not available in terms of section 263A of the Local Government Act. It was so held by Mr. Omburah and so by law it could not be ordered once again so as to prompt the proceedings before Mr. Ekhubi.
Accordingly, the proceedings before Mr. Ekhubi leading to the ruling of 21st May, 2012 were a nullity in law. They are now set aside.
What remains is that the parties should set down the application for contempt for hearing in the next twenty eight (28) days. The applicant’s Town Clerk to be present in court when that application is heard.
Delivered on 24th July, 2012.
J.W. MWERA
JUDGE