[1997] KEHC 33 (KLR)
The court held that there had not been certification by the court under Order 21 Rule 50 of the Civil Procedure Rules that the decree and other charges had been paid. Without such certification, the court could not set aside or review the decree. The application by the defendants to lift the attachment and...
Source-derived case information.
- Citation
- [1997] KEHC 33 (KLR)
- Parties
- Plaintiff: Trans-National Finance Co. Ltd; Defendant: Baranabas Some Busiene & 2 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 4157 of 1986
- Procedural Posture
- Civil Case / Ruling on Application to Lift Attachment and Execution
- Outcome
- application dismissed with costs
- Judges
- D Ole Keiwua
- Legal Topics
- Execution of Decrees, Stay of Execution, Certification of Payment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trans-National Finance Co. Ltd
Plaintiff
Baranabas Some Busiene & 2 Others
Defendant
Procedural Posture
Civil Case / Ruling on Application to Lift Attachment and Execution
Legal Issues
- 1 Whether the impending attachment and execution against the defendants should be lifted on the basis that the decree has been fully paid.
- 2 Whether the defendants should be fully discharged from liability and the suit marked as settled.
- 3 Whether an account should be taken as to the monies paid to the plaintiff.
Ratio Decidendi
The court held that there had not been certification by the court under Order 21 Rule 50 of the Civil Procedure Rules that the decree and other charges had been paid. Without such certification, the court could not set aside or review the decree. The application by the defendants to lift the attachment and execution, discharge them from liability, and mark the suit as settled was therefore dismissed. The court emphasized that the auctioneer, as an officer of the court, is not an agent of the plaintiff, and any alleged withholding of funds by the auctioneer does not affect the plaintiff's rights under the judgment.
Court Disposition
application dismissed with costs
Orders
- The application to lift attachment and execution is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.4157 OF 1986
TRANS-NATIONAL FINANCE CO. LTD .......................PLAINTIFF
VERSUS
BARANABAS SOME BUSIENE & 2 OTHERS....................DEFENDANT
R U L I N G
The defendants, apply that the impending attachment and execution against them, be lifted absolutely as the decree, has fully been paid. The defendants be fully discharged from liability and the suit be marked as settled.
There be stay of execution pending the determination of this application. In the alternative an account be taken as to the monies paid to the plaintiff.
Some of the defendant's vehicles were attached and sold to recover the alleged judgment sum. All these payments notwithstanding, the plaintiff still insists that the defendants owe some Kshs.700,000/=.
The plaintiff opposes the application. Some of the claims for payment made by the defendants are false and ridiculous. A sum of Kshs.20,000/= paid to M/s Kangwana & Co. Advocates was for disbursements. It is false to exaggerate that sum to one of Kshs.200,000/=.
It is contended, that the plaintiff is unaware of any money recovered by the Auctioneer who is an officer of the court, not an agent of the plaintiff. Even if, that auctioneer has pocketed any part of the money realized, that recovery and subsequent withholding by this 3rd party who is an agent of the court, cannot operate to prejudice the rights given to the plaintiff by the judgment.
It be remembered, that O. 21 r.50 requires that where the decree and other charges, have been paid and certified so by the court, it is only then that the decree is set aside or reviewed. I am afraid there has not been certification by the court under O. 21 r.50. Accordingly the application is dismissed with costs.
Dated and Delivered this 7th day of March, 1997.
in the presence of:
Otenyo for plaintiff absent
Mativo for defendant
M. OLE KEIWUA
JUDGE