Ameli Inyangu & Partners Advocates v Millenium Management Limited [2020] KEHC 5416 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

MISCELLANEOUS APPLICATION NO. 3 OF 2019

AMELI INYANGU & PARTNERS ADVOCATES ......APPLICANT

VERSUS

MILLENIUM MANAGEMENT LIMITED ..........RESPONDENT

CORAM:     Hon. Justice R. Nyakundi

Ms. AmeliInyangu Advocates for the Applicant

Ms. Fred Adhoch Advocates for the Respondent

RULING

The applicant vide Certificate of Urgency dated 11. 5.2020 prayed for the issue of a writ of prohibition against the respondent suit property referred as 5046/4/KILIFI – CR NO 14251 on account that it’s the only asset attachable to satisfy the pending decree of the Court.

On the same date the Certificate was ordered served upon the respondent pursuant to rules and regulations governing judiciary guidelines during the COVID – 19 pandemic.

Determination

This application is quite unique and novel and I do not wish to disguise my surprise that such an application should be considered necessary and proper in view of the chequered history of this litigation. The scope of this application is to be determined under Section 38 of the Civil Procedure Act.

Prohibition is a process of preventing the respondent from intermeddling with the identifiable property for having been considered as the only asset to satisfy the decree obtained by the  applicant.  Considering the aforesaid Section it is apparent that prohibition on transfer of property is not absolute.

Mr. Adhoch on behalf of the applicant has prefaced his arguments by stating that the respondent is likely to alienate, dispose or transfer the property to a third party as a means of defeating the execution and enforcement of the money decree.That contention is clearly not supported with materials on record.

There is no evidence that simultaneous to this Certificate of Urgency the applicant has initiated proceedings in execution of the decree. Mere speculation that the respondent is likely to alienate or dispose off the suit property by way of sale to avoid settling the decree is not sufficient for this Court to grant a writ of prohibition as adverted to by the applicant.

Therefore, the Certificate of Urgency on this issue alone is dismissed.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 29TH  DAY OF  MAY 2020

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R. NYAKUNDI

JUDGE

In the presence of:

1.  Ms. Wambui holding brief for FredAdhoch for the respondent