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ELCAllowedNot stated in judgment (Notice of Motion dated 7th November 2023)· [2024] KEELC 3637 (KLR)

Njoroge & 2 others v Nyoike; District Land Registrar, Muranga & another (Respondent) (Environment & Land Petition 1 of 2020) [2024] KEELC 3637 (KLR)

Environment and Land Court
29 February 2024
2,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a post-judgment Notice of Motion dated 7th November 2023 brought by the judgment creditors seeking a prohibitory order and attachment over the judgment debtor's land parcels Loc.6/Muthithi/1720 and Loc.6/Muthithi/1721 to satisfy taxed costs arising from the dismissal, with costs, of the judgment debtor's petition of 27th February 2017. The debt arose from costs taxed at Kshs. 1,399,389/= on 9th September 2022 plus Kshs. 12,910/= assessed on 5th July 2023, totalling Kshs. 1,415,229/=. The judgment debtor's attempt to set aside the taxation was dismissed on 28th March 2023 and no stay was in place. Though served, the judgment debtor did not oppose the application, but the court directed determination on merit and received the applicants' written submissions. Applying section 44 of the Civil Procedure Act, Order 22 rule 48 of the Civil Procedure Rules and section 68 of the Land Registration Act, and adopting the reasoning in Samuel Njeru Daniel, Ogembo Ondieki and Dorcas Muthoni, the court held that the parcels were not exempt property, the debt was unsatisfied, and no other assets of the debtor were known. The court allowed the application entirely in terms of prayers 2 and 3, issuing a prohibitory order barring transfer or charge of the two parcels and permitting attachment, with costs of the application to the applicants. Judgment delivered virtually at Murang'a on 29th February 2024 by L. Gacheru, Judge.

Key legal issues

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01

Liability of the suit properties to attachment

Holding

The two land parcels are liable to attachment as they are not among the properties exempted under section 44 of the Civil Procedure Act.

Reasoning

The court noted section 44 provides that all property of a judgment debtor is liable to attachment subject to statutory exemptions, and the two parcels do not fall in any exempt category. Since the debt of Kshs. 1,415,229/= was unsatisfied and no other assets were known, attachment of the immovable property under Order 22 rule 48 was the remaining option.

p. 5
02

Purpose and propriety of a prohibitory order

Holding

A prohibitory order preserves the property pending execution and prevents dealings that would render the decree nugatory; it was merited here.

Reasoning

Relying on Samuel Njeru Daniel v James Njeru Nthiga and Ogembo Ondieki v Samwel Bosire Angwenyi, the court held that prohibitory orders preserve property pending execution and prevent further dealings. The judgment debtor did not oppose, had not paid the debt, and had made no payment proposal, so the order was justified until payment of the judgment debt.

p. 4
03

Status of the taxed costs

Holding

The taxed costs of Kshs. 1,415,229/= constitute a valid judgment debt, the attempt to set aside taxation having been dismissed.

Reasoning

The court observed that a chamber summons dated 22nd September 2022 seeking to set aside the taxed bill of costs was dismissed on 28th March 2023, with no stay or setting aside of that ruling. The taxing master's decision therefore stood, and the taxed amount was a judgment debt capable of execution.

p. 3

Legal principles established

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  • All property of a judgment debtor is liable to attachment except property exempted under section 44 of the Civil Procedure Act.
  • Attachment of immovable property in execution is effected by a prohibitory order under Order 22 rule 48 of the Civil Procedure Rules.
  • Once a judgment debt remains unpaid, the judgment creditor may commence execution.

Court orders

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  1. 1.Prayer No. 2 granted: prohibitory order barring the Petitioner/Judgment Debtor from transferring or charging land parcels Loc.6/Muthithi/1720 and Loc.6/Muthithi/1721, with conditions for sale and settling terms
  2. 2.Prayer No. 3 granted: attachment against the Petitioner's land parcels Loc.6/Muthithi/1720 and Loc.6/Muthithi/1721 allowed
  3. 3.Applicants entitled to costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 44(1)
  • Civil Procedure RulesOrder 22 rule 48
  • Land Registration Actsection 68

Cases cited (3)

  • Samuel Njeru Daniel vs James Njeru Nthiga & 2 others
    (2017) eKLR
  • Ogembo Ondieki V Samwel Bosire Angwenyi & 2 Others
    [2020] eKLR, Kisii ELC Case No. 942 of 2016
  • Dorcas Muthoni & 2 Others Vs Michael Ireri Ngari
    (2016) EKLR
Jurisdiction invoked
Order 22 rule 48 of the Civil Procedure Rules and section 44 of the Civil Procedure Act; section 68 of the Land Registration Act (post-judgment execution application)

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, "Njoroge & 2 others v Nyoike; District Land Registrar, Muranga & another (Respondent) (Environment & Land Petition 1 of 2020) [2024] KEELC 3637 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 7th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3637/eng@2024-02-29

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