[1998] KEHC 254 (KLR)
The court held that it would be unlawful to order police assistance for the purpose of breaking into the respondent's godown to execute a civil judgment. The court relied on the Court of Appeal's decision in Kamau Mucuha v The Rupple Ltd., which established that police should not be used to effect forcible entry in...
Source-derived case information.
- Citation
- [1998] KEHC 254 (KLR)
- Parties
- Plaintiff: Tyre Masters Limited; Defendant: Jaswinder Singh Virdi t/a Jaswinder Singh Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 886 of 1996
- Procedural Posture
- Civil Appeal / Ruling on Ex Parte Chamber Summons for Police Assistance in Execution
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Execution of Judgments, Warrants of Attachment, Police Assistance in Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tyre Masters Limited
Plaintiff
Jaswinder Singh Virdi t/a Jaswinder Singh Enterprises
Defendant
Procedural Posture
Civil Appeal / Ruling on Ex Parte Chamber Summons for Police Assistance in Execution
Legal Issues
- 1 Whether the court can lawfully order police assistance to break into the respondent's premises for execution of a civil judgment.
- 2 Whether the applicant is entitled to police supervision and breaking in to effect attachment under the Civil Procedure Rules and Auctioneers Act.
Ratio Decidendi
The court held that it would be unlawful to order police assistance for the purpose of breaking into the respondent's godown to execute a civil judgment. The court relied on the Court of Appeal's decision in Kamau Mucuha v The Rupple Ltd., which established that police should not be used to effect forcible entry in civil execution. The application for police assistance and breaking in was therefore dismissed as contrary to established legal principles and statutory provisions governing civil execution.
Court Disposition
application dismissed
Orders
- The application for police assistance and breaking into the respondent's premises is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C.C. CIVIL APPEAL NO.886 OF 1996
TYRE MASTERS LIMITED ………………..……….. PLAINTIFF
VERSUS
JASWINDER SINGH VIRDI
T/A JASWINDER SINGH ENTERPRISES…..……. DEFENDANT
R U L I N G
This application by way of exparte chamber summons brought under O.XXI Rule 87 Civil Procedure Rules and the Auctioneers Act No.5 of (1996) Rules 9 (a-c) seeks orders
(1) That the Auctioneers namely DOLLAR AUCTIONS who were allocated warrants of attachment in this case be provided with police security from the nearest police station to supervise the said execution.
(2) That this Honourable court do issue an order to break into the premises
(3) That peace and order be maintained during the said exercise.
The applicant relies on his affidavit sworn on the 24th September 1998, in which he has deponed that after he was allocated warrants of attachment he proceeded to the defendant’s godown at Embakasi Nairobi and took the inventory on 19th August 1998.
Thereafter he has made several attempts trying to gain entry into the godown but in vain. When on 27th September 1998 he sent his workers to effect the warrants, they were chased away by the workers of the Judgment Debtor. He now applies for orders
that he be assisted by the police to break into the godown of the respondent to attach the property therein.
It would be unlawful to utilize the police in a civil action for the purpose of breaking into the godown of the Respondent. It was so stated by the Court of Appeal in Civil application No.186 of 1992 between KAMAU MUCUHA and THE RUPPLES LTD.,
I decline to make an order that police assistance be enhanced to secure compliance of the Court Order by the Respondent.
This application therefore fails and the same is dismissed.
Dated and Delivered at Nairobi this 23rd Day of October, 1998
J.LA. OSIEMO
JUDGE