David Gitau Thairu v County Government of Machakos, Governor, Machakos County Government & Attorney General (? 137 of 2018) [2022] KEELC 2140 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Deputy Registrar to issue a warrant of arrest on a Notice to Show Cause
The Deputy Registrar had no jurisdiction; under Order 49 Rule 7(1)(b)(x) the Registrar may hear Order 22 applications other than under rule 28, and Order 22 Rule 28 (detention/arrest enforcement) is reserved, with objections going before a judge under Order 49 Rule 5.
The court examined Order 49 Rule 5, Order 49 Rule 7(1)(b)(x) and Order 22 Rule 28 of the Civil Procedure Rules. Order 49 Rule 7(1)(b)(x) expressly excludes rule 28 applications from the Registrar's delegated powers, and Order 49 Rule 5 directs that objections to registrar's execution proceedings be heard by a judge. Since the NTSC and warrant related to enforcement of a decree for payment of exemplary damages, the Deputy Registrar exceeded his mandate.
Whether the 2nd Respondent could be arrested for the 1st Respondent's decretal debt
The 2nd Respondent is not the Accounting Officer of the 1st Respondent and the judgment ordered only the 1st Respondent to pay exemplary damages; therefore the warrant against him was improper.
The court noted that the impugned judgment ordered the 1st Respondent, not the 2nd Respondent, to pay exemplary damages of KES 5 million. It further held that under the Constitution the 2nd Respondent is not the Accounting Officer of the 1st Respondent. Although the 2nd Respondent was in fact served, personal execution against him for a debt owed by the county government was improper.
Whether the orders of 3rd September, 2021 should be set aside
The interim orders of 3rd September, 2021 were not disturbed in substance since the warrants underlying them were set aside; the Respondents' application was allowed and the Petitioner's cross-application disallowed.
Having found the warrants improper, the court set them aside and directed fresh service of a NTSC on the 1st Respondent's Accounting Officer. The Petitioner's application to keep the warrants in force and strike out the Respondents' application failed. The court nonetheless criticised the 1st Respondent's partial compliance and preserved the Petitioner's right to enforce the decree against the proper party.
Legal principles established
#- A Deputy Registrar lacks jurisdiction to hear and determine a Notice to Show Cause where a warrant of arrest is issued in enforcement of a decree under Order 22 Rule 28 of the Civil Procedure Rules.
- Under Order 49 Rule 5, if objection is taken to proceedings conducted by the registrar, all further proceedings shall be before a judge.
Court orders
#- 1.The Warrants of Arrest issued on 1st September, 2021 against the 2nd Respondent are set aside.
- 2.The application dated 2nd September, 2021 is allowed.
- 3.The application dated 9th September, 2021 is disallowed.
- 4.The 1st Respondent's Accounting Officer be served with a fresh Notice to Show Cause within 14 days from the date of the ruling, for failing to settle the decretal amount.
- 5.Costs of both applications awarded to the Petitioner.
- Jurisdiction invoked
- Original contempt/execution jurisdiction of the Environment and Land Court under the Civil Procedure Rules (Order 49 Rule 5, Order 49 Rule 7(1)(b)(x), Order 22 Rule 28)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Gitau Thairu v County Government of Machakos, Governor, Machakos County Government & Attorney General (? 137 of 2018) [2022] KEELC 2140 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2140/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.