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ELCPartially Allowed· [2019] KEELC 2745 (KLR)

Gor Construction & Hardware Company Limited v Martha Chimwene [2019] KEELC 2745 (KLR)

Environment and Land Court
3 July 2019
SKS. M. Kibunja
649 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court by Motion dated 30th October 2018 seeking prohibition over parcel L.R 15983/66 (I.R 67785/1) and leave to sell House No. 48 at Kenya Re Estate, Kisumu, to satisfy a decree for refund of Kshs.1,500,000, with interest and costs. The application was supported by an affidavit of Gordon Orure Kaoko, a director of the Plaintiff, and opposed by Martha Chimwene, the Defendant, by a replying affidavit sworn 17th January 2019. Counsel filed written submissions dated 19th February 2019 (Plaintiff) and 12th May 2019 (Defendant). The court framed two issues: whether the Plaintiff had established a case to attach and sell the Defendant's property to recover the money, and who should bear costs. The court observed that summary judgment for Kshs.1,500,000 had been entered on 21st September 2016 and had never been challenged by appeal or review. The Defendant did not dispute the indebtedness but sought twelve months to pay, asserting she had paid Kshs.465,000, evidenced by receipts of Kshs.250,000 and Kshs.100,000 and a cheque of Kshs.165,000. She nonetheless still owed over one million shillings and had made no payment since June 2018, with no justification offered for further time. The court held that the Plaintiff had accommodated the Defendant long enough and deserved assistance to recover his money. The application was allowed: the Plaintiff was permitted to attach and sell House No. 48 by public auction to satisfy the outstanding sum; a prohibition order in terms of prayer 1 was granted to safeguard the property during the process; and the Defendant was ordered to pay the costs of the application. Judgment delivered on 3rd July 2019 by S. M. Kibunja, Environment and Land Judge.

Key legal issues

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Whether the Plaintiff established a case to attach and sell the Defendant's property to satisfy the decree

Holding

Yes. Summary judgment for Kshs.1,500,000 was entered on 21st September 2016 and was never challenged by appeal or review. The Defendant admitted the debt but had not paid for over a year, so the Plaintiff was entitled to execution.

Reasoning

The court noted that summary judgment had been entered in 2016 and was unchallenged. The Defendant did not dispute the indebtedness, only sought twelve months to pay, claiming to have paid Kshs.465,000 evidenced by receipts. Even on her own showing she owed over one million shillings and had made no payment since June 2018. The court found the Plaintiff had accommodated the Defendant long enough and deserved the court's assistance to recover his money, warranting attachment, sale and a prohibition order to preserve the property.

p. 1

Legal principles established

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  • A judgment debtor who admits indebtedness but seeks time to pay must demonstrate a reasonable basis; where no payment has been made for over a year, execution against property may be allowed.

Court orders

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  1. 1.Plaintiff at liberty to attach and sell through public auction the Defendant's property described as House No. 48, Kenya Re Kisumu in Land Parcel No. L.R 15983/66 (I.R 67785/1), to satisfy the outstanding sum arising from the court's ruling of 21st September 2016
  2. 2.Prohibition order granted in terms of prayer 1 of the Motion dated 30th October 2018 to safeguard the property during attachment and auction
  3. 3.Defendant to pay the Plaintiff the costs of the application
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a decree arising from a land sale agreement; no specific constitutional/statutory provision cited

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, "Gor Construction & Hardware Company Limited v Martha Chimwene [2019] KEELC 2745 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2745/eng@2019-07-03

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