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ELCPartially AllowedNot stated in judgment· [2021] KEELC 3785 (KLR)

Beatrice Muthio Nzioka v Charles Akelo Ong’wen [2021] KEELC 3785 (KLR)

Environment and Land Court (implied by subject matter; court not expressly named)
22 March 2021
KBK. BOR
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that money a defendant deposited in court as security can be seized to pay a judgment debt, despite a pending appeal.

What this practically means

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Executive summary

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The Plaintiff, a decree holder under a judgment dated 8/12/2014 directing the Defendant to vacate her residential property (Nairobi/Block 140/40/70) and to pay damages of Kshs 1,474,000 plus Kshs 22,000 per month in mesne profits until vacant possession was given on 18/1/2020, applied on 25/2/2020 under Orders 22 and 27 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(b) and (e) of the Civil Procedure Act. She sought attachment and payment out of Kshs 1,000,000 the Defendant had deposited in court on 27/12/2018 as security pursuant to a stay of execution granted on 13/12/2018, together with waiver of surrender of the original deposit receipt. She computed the decretal sum, including taxed costs of Kshs 489,973.67, at Kshs 1,645,919.67. The Defendant opposed, arguing the deposit was security for a pending appeal; that the Court of Appeal's ruling of 19/7/2019 directed the deposit be refunded to him; and that this court lacked jurisdiction to contradict the Court of Appeal. He urged refund to himself or to Monicah Atieno Ong'weno, who deposited the funds. The court framed a single issue: whether the orders sought should issue. Applying Section 44 of the Civil Procedure Act, the court held that all property of a judgment debtor is liable to attachment unless excluded, and the security for costs was not among the exclusions. The court granted prayers 3 and 4 of the application. Judgment delivered virtually at Nairobi on 22 March 2021 by K. Bor, J.

Key legal issues

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Whether the Kshs 1,000,000 security for costs deposited in court by the Defendant is liable to attachment and payment out to the Plaintiff/decree holder

Holding

Yes. The security, which the Court of Appeal determined was the Defendant's property, is not among the categories excluded from attachment under Section 44 of the Civil Procedure Act and is therefore liable to attachment in execution of the decree.

Reasoning

The court applied Section 44 of the Civil Procedure Act, which renders all property of a judgment debtor liable to attachment and sale in execution of a decree, and examined the statutory exclusions. The security for costs did not fall within the excluded categories. The Defendant's objection that releasing the funds would overturn the Court of Appeal's direction that the deposit be refunded to him was rejected, as was his contention that mesne profits should await the outcome of the pending appeal.

p. 2

Legal principles established

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  • All property belonging to a judgment debtor, including property over which he has a disposing power which he may exercise for his own benefit, is liable to attachment and sale in execution of a decree, save for what Section 44 of the Civil Procedure Act excludes.

Court orders

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  1. 1.Prayers 3 and 4 of the application dated 25/2/2020 granted
  2. 2.The sum of Kshs 1,000,000 deposited in court as security to be attached and paid out to the Plaintiff through the firm of Adera and Company Advocates in partial execution/satisfaction of the decree dated 8/12/2014
  3. 3.Production and surrender of the original deposit receipt number 0116657 of 23/1/2019 waived and dispensed with

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 63(b) and (e)
  • Civil Procedure ActSection 44
  • Civil Procedure RulesOrder 22
  • Civil Procedure RulesOrder 27
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(b) and (e) of the Civil Procedure Act and Orders 22 and 27 of the Civil Procedure Rules

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, "Beatrice Muthio Nzioka v Charles Akelo Ong’wen [2021] KEELC 3785 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3785/eng@2021-03-22

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