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ELCDismissedEldoret Misc. Civil Application No. 145 of 2019· [2020] KEELC 3404 (KLR)

Kiplagat Kotut v Rose Jebor Kipngok; Standard Chartered Bank & another (Garnishees) [2020] KEELC 3404 (KLR)

High Court of Kenya
12 February 2020
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The High Court in Eldoret confirmed that appeals from a Deputy Registrar on execution matters go to a Judge in Chambers, and dismissed an attempt to block a garnishee application despite late service.

What this practically means

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Executive summary

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The Applicant, Kiplagat Kotut, moved the court by Motion dated 10th September 2019 seeking interim orders directing Standard Chartered Bank and another garnishee to preserve balances in account No. 0100342888900 pending hearing of his application and of an appeal, in pursuit of costs awarded by the Court of Appeal in Eldoret Civil Appeal No. 31 of 2015 arising from Eldoret ELC No. 691 of 2012. The Respondent, Rose Jebor Kipngok, filed a preliminary objection on four grounds: late service without extension of time; that no appeal lies from a Deputy Registrar's decision, only a reference; that simultaneous execution was impermissible while a notice to show cause was pending; and that the supporting affidavit sworn by the Applicant's Counsel contained contentious matters. The court framed four issues and found: first, under Order 49 Rule 7(2) of the Civil Procedure Rules, appeals from the Deputy Registrar on execution and attachment matters lie to a Judge in Chambers, so that ground failed. Secondly, although service on 13th September exceeded the two-day direction, the Respondent filed her replying affidavit about three days before the hearing as required by Order 51 Rule 14(2), suffered no prejudice, and striking out was unwarranted. Thirdly, paragraphs 5 and 8 of the supporting affidavit, dealing with the Respondent's bank account details whose source was undisclosed, were struck out as matters best deponed to by the client, but the chamber summons survived. Fourthly, while Order 22 Rule 17 contemplates simultaneous execution, the Respondent's fears were justified by the non-disclosure of the status of execution in the original suit, and the Applicant should have moved through the record of Eldoret ELC No. 691 of 2012. The preliminary objection was dismissed with costs.

Key legal issues

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01

Whether appeal lies from the Deputy Registrar's decision

Holding

Appeal lies to a Judge in Chambers under Order 49 Rule 7(2); the ground fails.

Reasoning

Order 49 confers special powers on Registrars; Rule 7(2) expressly provides that an appeal from a Registrar's decision on the matters in sub-rule (1), which include execution and attachment for decree on costs, lies to a Judge in Chambers. The matter before the Deputy Registrar fell within Order 49 Rule 7(1)(x) and (xi), so the objection ground was misconceived.

p. 2
02

Whether late service rendered the proceedings null and void

Holding

No; the Respondent suffered no prejudice having filed her replying affidavit about three days before the hearing, satisfying Order 51 Rule 14(2).

Reasoning

Service on the 13th September was outside the two-day direction and undisputed, but the Respondent filed her replying affidavit and notice of preliminary objection on 16th September, about three clear days before the 19th September hearing, meeting the requirement in Order 51 Rule 14(2) that documents in opposition be filed not less than three clear days before hearing. No prejudice, no striking out.

p. 2
03

Whether the supporting affidavit by Counsel should be struck out

Holding

Partially; paragraphs 5 and 8, dealing with the Respondent's undisclosed bank account details, were struck out, but the application survived.

Reasoning

Most paragraphs concerned matters apparent from court documents which Counsel could properly depone to. However, the bank account details in paragraphs 5 and 8 were not apparent from the Deputy Registrar's ruling or the decree nisi, and the deponent did not disclose his source; such contentious matters are best deponed to by the client or party, not Counsel.

p. 2
04

Whether simultaneous execution was unlawful or oppressive

Holding

The court expressed concern over lack of disclosure of the status of execution in Eldoret ELC No. 691 of 2012 and observed the Applicant should have moved through the record of the original suit rather than the misc. application.

Reasoning

Order 22 Rule 17 permits the court to refuse simultaneous execution against the person and property of a judgment debtor. The Respondent's fears were not far-fetched because there was no disclosure as to the status of execution in Eldoret ELC No. 691 of 2012. The court observed the Applicant should have moved through the record of the original suit, Eldoret ELC No. 691 of 2012, to execute the costs awarded in Court of Appeal Civil Appeal No. 31 of 2015.

p. 2

Legal principles established

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  • An appeal from a decision of the Registrar on execution and attachment matters lies to a Judge in Chambers under Order 49 Rule 7(2)
  • A judgment of the Court of Appeal may be executed and enforced as if it were a judgment of the High Court
  • Matters within an Advocate's knowledge from court processes may be deponed to by Counsel, but matters such as a judgment debtor's bank account details must come from the client or disclose the source

Court orders

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  1. 1.Preliminary objection dated 16th September 2019 dismissed with costs
  2. 2.Paragraphs 5 and 8 of the supporting affidavit sworn on 10th September 2019 by Jonah K. Korir Advocate struck out

Authorities

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Legislation

  • Civil Procedure RulesOrder 49 rule 5
  • Civil Procedure RulesOrder 49 Rule 7(1)(x) and (xi)
  • Civil Procedure RulesOrder 49 Rule 7(2)
  • Civil Procedure RulesOrder 22 Rule 12
  • Civil Procedure RulesOrder 22 Rule 17
  • Civil Procedure RulesOrder 51 Rule 14(2)
  • Civil Procedure RulesSections 30 and 34
  • Appellate Jurisdiction ActSection 4
  • Advocates ActSection 51(2)

Cases cited (1)

  • Global Vehicles (K) Ltd Vs Lenana Road Motors Ltd
    [2017] eKLR, Mombasa Misc. Civil Application No. 553 of 2016
On appeal from
Deputy Registrar, High Court, Eldoret
Eldoret Misc. Civil Application No. 145 of 2019 (ruling of 10th September 2019)
Jurisdiction invoked
Order 49 Rule 7(2) of the Civil Procedure Rules - appeal from a decision of the Registrar to a Judge in Chambers

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 & another (Garnishees) [2020] KEELC 3404 (KLR)", Case Analysis (2020). Eldoret Misc. Civil Application No. 145 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3404/eng@2020-02-12

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