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ELCPartially Allowed· [2022] KEELC 2140 (KLR)

David Gitau Thairu v County Government of Machakos, Governor, Machakos County Government & Attorney General (? 137 of 2018) [2022] KEELC 2140 (KLR)

Environment and Land Court
19 January 2022
2,230 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Machakos (Christine Ochieng, J) determined two competing Notice of Motion applications arising from a judgment delivered on 30th July, 2020 in which the 1st and 2nd Respondents were ordered to remove waste and soil deposited on the Petitioner's land and restore it, and the 1st Respondent was ordered to pay the Petitioner exemplary damages of KES 5 million. In execution, the acting Deputy Registrar issued a Notice to Show Cause against the 2nd Respondent and, on 1st September, 2021, a Warrant of Arrest after the 2nd Respondent failed to personally attend court. The 1st and 2nd Respondents applied on 2nd September, 2021 to set aside the warrants and for leave to respond to the NTSC, contending the Deputy Registrar lacked jurisdiction, the 2nd Respondent was not personally served, and he was neither an accounting officer nor a pay point of the 1st Respondent. The Petitioner's cross-application of 9th September, 2021 sought to keep the warrants in force and strike out the Respondents' application. The court framed two issues: the Deputy Registrar's jurisdiction to issue the warrant, and whether the orders of 3rd September, 2021 should be set aside. Relying on Orders 49 Rules 5 and 7(1)(b)(x) and Order 22 Rule 28 of the Civil Procedure Rules, the court held the Deputy Registrar had no jurisdiction to hear the NTSC or issue a warrant of arrest, and that the 2nd Respondent, not being the 1st Respondent's Accounting Officer and not being the party ordered to pay damages, could not be arrested. Although satisfied the 2nd Respondent was served, the court set aside the warrants, allowed the Respondents' application, dismissed the Petitioner's, and directed fresh service of a NTSC on the 1st Respondent's Accounting Officer within 14 days, with costs of both applications to the Petitioner as the party yet to be paid the decretal sum.

Key legal issues

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01

Jurisdiction of the Deputy Registrar to issue a warrant of arrest on a Notice to Show Cause

Holding

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.

Reasoning

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.

p. 3
02

Whether the 2nd Respondent could be arrested for the 1st Respondent's decretal debt

Holding

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.

Reasoning

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.

p. 3
03

Whether the orders of 3rd September, 2021 should be set aside

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Warrants of Arrest issued on 1st September, 2021 against the 2nd Respondent are set aside.
  2. 2.The application dated 2nd September, 2021 is allowed.
  3. 3.The application dated 9th September, 2021 is disallowed.
  4. 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. 5.Costs of both applications awarded to the Petitioner.

Authorities

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Legislation

  • Civil Procedure RulesOrder 49 Rule 5
  • Civil Procedure RulesOrder 49 Rule 7(1)(b)(x)
  • Civil Procedure RulesOrder 22 Rule 28
  • Constitution of Kenyaprovisions on the Accounting Officer of a county government (not specified)
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

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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, "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.