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ELCDismissedNot stated in extract (Notice of Motion dated 6th May 2013)· [2015] KEELC 577 (KLR)

Paul Otieno Mungla v Railway Housing Co-op. Society Limited [2015] KEELC 577 (KLR)

High Court of Kenya
10 March 2015
PNP. Nyamweya
2,169 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a bid to jail a defendant and freeze a co-operative's bank accounts because the applicant skipped a mandatory notice step before enforcing an old decree.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 6th May 2013, under Order 22 Rule 28 of the Civil Procedure Rules, seeking the arrest and detention in civil jail of the 2nd Defendant, Moses Ndegwa Gitonga, for six months or until satisfaction of a consent decree dated 25th October 2011 for specific performance of a sale of a subdivision of Plot No. 13 on L.R. 12715/141, and the attachment and freezing of the 1st Defendant's (Railway Housing Co-operative Society Limited) bank accounts at Barclays Bank and Co-operative Bank. The Plaintiff contended the Defendants had wilfully refused to comply despite being furnished with completion documents and conveyance fees on 31st October 2011. The 1st Defendant denied liability as an agent of a disclosed principal acting for the 2nd Defendant, and blamed the 2nd Defendant for failing to process deed plans. The 2nd Defendant denied wilful disobedience, showing approvals from the Municipal Council of Mavoko and the Commissioner of Lands, engagement of surveyors and a transfer of the plot into his name on 14th August 2013. The court framed two issues: whether the 2nd Defendant could be committed to prison and whether the 1st Defendant's property could be attached. Applying Order 22 Rule 18(1), the court found the decree annexed was issued on 5th March 2012 and the application filed on 7th May 2013, beyond one year, with no evidence of prior execution proceedings; a notice to show cause was therefore mandatory. The application was dismissed as incompetent, each party bearing own costs, with liberty to recommence upon proper notice.

Key legal issues

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01

Whether committal to prison and attachment could issue without notice to show cause under Order 22 Rule 18(1)

Holding

No - the application was filed more than one year after the decree and there was no evidence of previous execution proceedings, so the notice to show cause was mandatory and its absence rendered the application incompetent

Reasoning

The decree annexed by the Plaintiff was issued on 5th March 2012 and the Notice of Motion was filed on 7th May 2013, beyond one year. Order 22 Rule 18(1) requires a show-cause notice where execution is sought more than one year after the decree, unless within one year of a last order on a previous execution application. The Plaintiff adduced no evidence of prior execution proceedings, so the proviso did not assist him and the application failed procedurally.

p. 4
02

The legal framework for enforcement of a decree for specific performance by detention in prison or attachment of property

Holding

Order 22 Rule 28 permits enforcement of a decree for specific performance by detention in prison or attachment of property where the party has had an opportunity to obey and wilfully failed; against a corporation, by attachment of its property

Reasoning

The court set out Order 22 Rule 28 and adopted Kuloba's Judicial Hints on Civil Procedure, noting that in committal proceedings for a civil debt the court's preoccupation is execution of the decree and need not inquire into contempt, subject to the safeguards in the Civil Procedure Act and Rules. The same principles apply to attachment of movable property. The court did not reach the merits because of the procedural defect.

p. 3

Legal principles established

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  • Where an application for execution of a decree for specific performance is made more than one year after the date of the decree, the court must issue a notice to the judgment-debtor to show cause why the decree should not be executed
  • Committal to civil jail and attachment are ordinary and acceptable means of enforcing a decree, subject to the conditions and limitations in the Civil Procedure Act and Rules

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 6th May 2013 is denied
  2. 2.Each party shall meet their own costs of the said Notice of Motion
  3. 3.The Plaintiff is at liberty, after issuance of the necessary notice to show cause, to proceed with committal to prison and attachment proceedings against the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 28
  • Civil Procedure RulesOrder 22 Rule 18(1)
  • Civil Procedure Actgeneral reference (safeguards)

Cases cited (6)

  • Anthony Francis Wareheim t/a Wareheim & 2 Others vs Kenya Post Office Savings Bank, Civil Application No. Nai 5 & 48 of 2002
  • Victor Mabachi & Another vs Nurtun Bates Limited
    (2013) eKLR
  • Mutitika vs Baharini Farm Ltd
    (1985) KLR 229
  • Braeburn Limited vs Gachoka and Another
    [2007] 2 EA 67
  • Jayne Wangui Gachoka vs Kenya Commercial Bank
    Petition Number 51 of 2010
  • Industrial & Commercial Development Corporation vs Onyango
    (1983) KLR 416
Jurisdiction invoked
Order 22 Rules 28 and 18(1) of the Civil Procedure Rules (execution of decree for specific performance)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Otieno Mungla v Railway Housing Co-op. Society Limited [2015] KEELC 577 (KLR)", Case Analysis (2015). Not stated in extract (Notice of Motion dated 6th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/577/eng@2015-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.