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Case Brief · caselaw.co.ke
High CourtAllowedNot stated in judgment (Notice of Motion dated 2/11/2018)

Applicant v Respondents (Judicial Review - supervisory jurisdiction over execution proceedings)

High Court of Kenya
8 February 2019
1,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Courts must ensure all previous legal actions are fully accounted for before issuing new ones, even when enforcing judgments.

What this practically means

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Executive summary

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The applicant moved the High Court at Mombasa by a Notice of Motion dated 2/11/2018, invoking Article 165(6) and (7) of the Constitution, complaining that the lower court issued an attachment to enforce a judgment delivered on 4/12/2014 prior to service of a notice to show cause and without first accounting for proceeds of chattels earlier attached. The respondents did not dispute that the judgment was more than 12 months old when execution was sought on 3/10/2018, nor that a motor vehicle (KAS 174K) and a motorcycle (KMCS 612B) had been attached under warrants issued on 31/3/2015; they contended the court had jurisdiction under Order 22 Rule 18 to issue execution without a notice to show cause. Otieno J held that the supervisory jurisdiction under Article 165(7) is wide and aimed at ensuring fair administration of justice, not usurping lower courts' powers. Perusal of the trial court file revealed that the 31/3/2015 warrants, though admittedly executed, were never returned to court as their face required. The court held it was illegal to issue fresh warrants to the same auctioneer before returns were made, and invoked the court's inherent power to do justice, citing the Court of Appeal in Kenya Power & Lighting Co Ltd v Benzene Holdings and Halsbury's Laws of England. The application was allowed: the 3/10/2018 warrants were recalled and set aside ex-debito justitiae, the auctioneer was directed to make returns within 7 days, no execution steps were to precede those returns, and costs were awarded to the applicant.

Key legal issues

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01

Supervisory jurisdiction under Article 165(6) & (7)

Holding

The jurisdiction is wide and geared towards supervision, not usurpation of lower courts' powers, to ensure fair administration of justice in accordance with the law

Reasoning

The court held that Article 165(7) jurisdiction exists to ensure administration of justice is conducted fairly, meaning dispensation of justice in accordance with the law. Since it was asserted that warrants were issued on 3/10/2018 without regard to Order 22 Rule 18 while earlier warrants remained unreturned, the supervisory jurisdiction was properly invoked and the trial court file was called up for perusal.

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02

Return of warrants of attachment and sale

Holding

The requirement to return warrants to court enforces accountability and openness; new warrants cannot issue before returns are made on earlier executed warrants

Reasoning

The court perused the trial file and found the 31/3/2015 warrants were executed but never returned. The face of the warrants required return to apprise the court of execution. Issuing fresh warrants on 3/10/2018 before returns were made was therefore illegal, justifying recall and setting aside of the subsequent warrants.

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03

Inherent power of the court

Holding

The court invoked its inherent powers to do justice and avoid hardship, described as intrinsic and unhindered by procedural nuances

Reasoning

In setting aside the 3/10/2018 warrants, the court invoked its inherent powers, citing the Court of Appeal in Kenya Power & Lighting Co Ltd v Benzene Holdings and Halsbury's Laws of England on the nature of inherent jurisdiction as a residual fund of powers exercisable even where rules of court apply.

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Legal principles established

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  • It is not legal to issue a new set of warrants of attachment and sale to the same auctioneer before he has made his returns to court on earlier warrants
  • The High Court's inherent power to do justice is wide, unfettered and exercisable even where rules of court govern the circumstances

Court orders

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  1. 1.The subsequent warrants of attachment and sale issued on 3/10/2018 are recalled and every step and process undertaken pursuant to them is set aside ex-debito justitiae
  2. 2.Ndutumi Auctioneers to make its return on the warrants of 31/3/2015 within 7 days after the order is extracted and served upon it
  3. 3.No steps to be taken towards execution until the auctioneer's returns have been rendered
  4. 4.The trial court to have due regard to Order 22 Rule 18 when considering how to bring the matter to conclusion
  5. 5.Costs of the application awarded to the applicant
Jurisdiction invoked
Article 165(6) & (7) of the Constitution (supervisory jurisdiction over subordinate courts and tribunals)

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, "Applicant v Respondents (Judicial Review - supervisory jurisdiction over execution proceedings)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 2/11/2018). Source: 

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