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ELCDismissedNotice of Motion dated 10th September, 2019 (arising from C.A.C.A. No. 31 of 2015; Eldoret High Court Misc. Application No. 145 of 2019)· [2020] KEELC 1067 (KLR)

Kiplagat Kotut v Rose Jebor Kipngok Standard Chartered Bank Ltd (Garnishee) [2020] KEELC 1067 (KLR)

Environment and Land Court
14 October 2020
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a bid to freeze a bank account because the appellant filed documents late and unpaid, leaving no valid evidence.

What this practically means

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Executive summary

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The Appellant, Kiplagat Kotut, moved the Court by Notice of Motion dated 10th September 2019 seeking preservation of all balances in the Garnishee's Standard Chartered Bank account No. 0100342888900 pending the hearing of his appeal against a ruling of 10th September 2019 in which the Deputy Registrar struck out his execution application in Eldoret High Court Misc. Application No. 145 of 2019. He relied on Order 40 Rule 2 of the Civil Procedure Rules and on the Akarim Agencies authorities, arguing the account held Kshs.390,425 sufficient to settle the decretal costs awarded in C.A.C.A. No. 31 of 2015. The Respondent opposed, arguing the Appellant had attached other assets, that the appeal was misplaced as a reference was the proper avenue, that the supplementary affidavit was never formally filed, was sworn irregularly and annexures not certified under Section 80 of the Evidence Act. The court framed two issues: whether a reasonable case for a preservatory order was made out, and costs. It found the supplementary affidavit filed outside the seven days granted on 12th February 2020 without extension, and unpaid for except the supplementary submissions; the documents were struck out. The surviving supporting affidavit was insufficient to ground the preservatory order. The court also reiterated that the Appellant should have executed through the original suit, Eldoret ELC No. 691 of 2012. The Motion was dismissed with costs to the Respondent under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether a preservatory order (account freeze) should issue pending appeal under Order 40 Rule 2

Holding

No - the application failed because the evidential foundation was struck out; the remaining affidavit material was insufficient to support the preservatory order.

Reasoning

The court had earlier struck out paragraphs 5 and 8 of the supporting affidavit in its ruling of 12 February 2020. The Appellant sought to fill the gap with a supplementary affidavit, but leave granted on 12 February 2020 to file within seven days lapsed on about 19 February 2020 without any extension being sought. Copies filed in May and July 2020 were therefore irregular. Additionally, of the documents stamped 29 July 2020, only the supplementary submissions were paid for; the affidavit and submissions carried no filing fees. The evidentiary basis for preservation thus collapsed and the motion was dismissed with costs.

p. 2
02

Costs of the application

Holding

The Respondent, having opposed the Motion by replying affidavit and submissions, is entitled to costs under Section 27 of the Civil Procedure Act.

Reasoning

The court applied the general costs rule in Section 27 of the Civil Procedure Act (Cap. 21), awarding costs to the successful Respondent who had filed a replying affidavit and written submissions in opposition to the Motion. The Motion was accordingly dismissed with costs.

p. 2

Legal principles established

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  • Documents filed outside the time granted by the court, and without payment of requisite filing fees, are irregularly on record and liable to be struck out.

Court orders

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  1. 1.The Appellant's supplementary affidavit copies and submissions improperly on record struck out for being irregularly filed and unpaid for
  2. 2.The Appellant's Motion dated 10th September, 2019 dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2
  • Civil Procedure RulesOrder 23
  • Evidence ActSection 80
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27

Cases cited (2)

  • International Air Transport Association & Another Vs Akarim Agencies Company Ltd & 2 Others
    (2014) eKLR
  • David Kimaiyo Vs Mercy Jebet Baswony & Another
    [2015] eKLR
On appeal from
Deputy Registrar, High Court Eldoret (ruling striking out execution application in Eldoret High Court Misc. Application No. 145 of 2019)
Eldoret High Court Misc. Application No. 145 of 2019
Jurisdiction invoked
Appellate/procedural jurisdiction under the Civil Procedure Act and Rules (Order 40 Rule 2 of the Civil Procedure Rules invoked for preservatory orders pending appeal)

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, "Kiplagat Kotut v Rose Jebor Kipngok Standard Chartered Bank Ltd (Garnishee) [2020] KEELC 1067 (KLR)", Case Analysis (2020). Notice of Motion dated 10th September, 2019 (arising from C.A.C.A. No. 31 of 2015; Eldoret High Court Misc. Application No. 145 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1067/eng@2020-10-14

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