[2023] KECPT 735 (KLR)
The Tribunal found that the Respondent had been given an opportunity to show cause and had demonstrated willingness to pay the decretal amount, subject to the sale of its property. There was no evidence that the Respondent intended to delay execution by leaving the court's jurisdiction or concealing property, and...
Source-derived case information.
- Citation
- [2023] KECPT 735 (KLR)
- Parties
- Applicant: Henry Wandeto Wamutegi; Respondent: Ufundi Sacco Society Ltd
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 228 of 2020
- Procedural Posture
- Notice to Show Cause / Ruling on Application to Lift Warrants of Arrest
- Outcome
- warrants of arrest lifted; respondent ordered to pay decretal sum within 40 days
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Execution of Decree, Warrants of Arrest, Judgment Debtor Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Wandeto Wamutegi
Applicant
Ufundi Sacco Society Ltd
Respondent
Procedural Posture
Notice to Show Cause / Ruling on Application to Lift Warrants of Arrest
Legal Issues
- 1 Whether the warrants of arrest against the Judgement Debtor should be lifted.
- 2 Whether the Judgement Debtor has shown sufficient cause to stay execution of the decree.
Ratio Decidendi
The Tribunal found that the Respondent had been given an opportunity to show cause and had demonstrated willingness to pay the decretal amount, subject to the sale of its property. There was no evidence that the Respondent intended to delay execution by leaving the court's jurisdiction or concealing property, and the Respondent had shown means to pay. Accordingly, the requirements of section 38 of the Civil Procedure Act, 2010 were satisfied, and the warrants of arrest were lifted. The Respondent was ordered to pay the decretal sum within 40 days, balancing the Claimant's right to the fruits of judgment with the Respondent's demonstrated good faith and financial constraints.
Court Disposition
warrants of arrest lifted; respondent ordered to pay decretal sum within 40 days
Orders
- The warrant of arrest against the Judgement Debtor is lifted.
- The Judgement Debtor is ordered to pay the decretal sum within 40 days from the date of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
Wamutegi v Ufundi Sacco Society Ltd (Tribunal Case 228 of 2020) [2023] KECPT 735 (KLR) (Civ) (31 August 2023) (Ruling)
Neutral citation: [2023] KECPT 735 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case 228 of 2020
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
August 31, 2023
Between
Henry Wandeto Wamutegi
Claimant
and
Ufundi Sacco Society Ltd
Respondent
Ruling
1. The matter for determination is for a notice to show cause for the Respondent dated 19th March 2021, against the Judgement Debtor to show why warrants of arrest should not be issued against them. The Respondents filed their response vide a Replying Affidavit dated 25th October 2022. The Respondent claims that he was unable to refund the deposits as required by the Claimant because they are currently faced with acute financial shortage and the only way the Respondent can raise money to refund the Claimant is by sale of its assets.
2. The Respondent further claims, that he offered to sale its property situated on LR No. 209/2571 in order to settle this claim. The Respondent claims that he requires time to conclude the outstanding issues and proceed to sell the property in question.
3. As such the issue for determination is whether the warrants of arrest should be lifted.Order 22 rule 18 of the Civil Procedure Rules, 2010 provides that Courts should issue a notice to the Judgement Debtor requiring him to show cause why the decree should not be executed. Further, order 22 rule 22 of the Civil Procedure Rules, 2010 provides that the Court shall upon sufficient cause being shown, stay the execution of such decree.
4. Similarly, section 38 of Civil Procedure Act, 2010 prohibits the Court from making an order of execution of any decree unless the Judgement Debtor has first been given opportunity of showing cause why he should not be committed to prison. In addition, it provides that the Court shall not issue an order of execution by detention in prison unless the Judgement Debtor wants to delay execution of the decree by leaving the Courts jurisdiction or by transferring or concealing property and unless the Judgement Debtor has means to pay the amount of the decree.
5. In this case the Respondent was given time to show cause why the warrants of arrest should not be issued against them. They came on record and claimed that they are willing to pay the decretal amount but need time to proceed to sell the property situated on LR No. 209/2571. The Respondents have not shown that they want to delay execution of the decree by either leaving the Courts jurisdiction or by transferring or concealing property, and have shown that they have means to pay the decretal amount. Therefore, they have satisfied the provisions of section 38 of Civil Procedure Act, 2010.
UpshotThe warrant of arrest is lifted and the Judgement Debtor is ordered to pay the decretal sum within 40 days herein since the Claimant is entitled to the fruits of the Judgement entered on 3/9/2020.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. Hon. Beatrice Kimemia Chairperson Signed 31. 8.2023Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023Hon. Beatrice Sawe Member Signed 31. 8.2023Hon. Fridah Lotuiya Member Signed 31. 8.2023Hon. Philip Gichuki Member Signed 31. 8.2023Hon. Michael Chesikaw Member Signed 31. 8.2023Hon. Paul Aol Member Signed 31. 8.2023Tribunal Clerk JemimahHon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023