Engineer E.M Kithimba T/A Kithimba Associates Consulting Eng v Attorney General & Coast Development Authority [2015] KEHC 8352 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NO. 401 OF 2008

ENGINEER E.M KITHIMBA……..…………PLAINTIFF

T/A KITHIMBA ASSOCIATES CONSULTING ENG

VERSUS

THE HONOURABLE ATTORNEY GENERAL………..1ST DEFENDANT

COAST DEVELOPMENT AUTHORITY.....2ND DEFENDANT

RULING

The 2nd Defendant /Applicant has moved Court via Motion dated 19/11/2013 seeking Stay of Execution pending interparte hearing, setting aside of attachment warrants dated 30/10/2013 and also setting aside proclamation of attachment  dated 8. 11. 2013.

The Application is anchored on Section 1A, 1B, 3A and 563 (e) Order 6, 22, 25 and Order 51 Rules 1 & 3 CPR. The application is based on grounds on the foot of the motion namely, after being aggrieved by the Judgement herein, the Applicant lodged notice of appeal and requested for the proceedings on 3/10/2012 though not furnished to date.

The Respondent has however executed warrants of attachment which were not properly or regularly served on the Defendant/Applicant.  The property attached belongs to the 1st Defendant though notice of proclamation was not served contrary to the procedure.

The application is supported by the Affidavit of EDEL FUCHAKA Legal Services Manager of the 2nd Defendant.  The Applicant via Kanyiri State Counsel stated that they were relying on its written submissions though same is not on record.  The Counsel submitted that the proclamation violated Order 22 Rule 18 of the CPR as no Notice to Show Cause was served.  The judgement being executed having been delivered more than a year before execution process commenced.

Further the proclamation wrongly and irregularly done in that it was served on 15. 11. 2015 and attachment undertaken on 18/11/2013 (3 days) after proclamation.  The warrants indicated that they were issued and dated 30/10/2013 and 15 days notice was to be given to Judgement Debtor before execution.  The court thus can grant stay of the execution.

The notice of appeal was filed in time after the judement was delivered.  The appeal has not been lodged as the proceedings which was applied along with the lodging of the notice of the appeal, have not been furnished.  The Judgement Debtor is going to be crippled by the sale of its property attached.  The Plaintiff/Respondent has opposed the application and has filed an Affidavit sworn by EVANS M. MAABI on 25/11/2013.  The Respondent has also filed submissions on 16/9/2014.

The Applicant case is that after the judgement was delivered in his favour, he sought execution on 11/9/2013 and by then the one year period from the date of judgement had not lapsed.  The proclamation was done and service of same executed on 8/11/2013. The same was served upon MARY SALAMA.  The proclamation gave 7 days’ notice period as provided by law and thus on 15. 11. 2013 attachment was carried out.

The applicant however via its agent refused to sign the inventory of the attached items.  The Respondent submits that the procedure for proclamation and attachment was followed to the letter. He cites Auctions Act Rules No.12 of Act of 1997 Sub Rule (c) where it stipulates that on proclamation, notice to be given before attachment is seven (7) days.

The Applicant has not sought to cross examine the auctioneer herein. He submits that the submissions seeking stay of execution pending appeal are not in tandem with the reliefs/prayers sought in the application.  Also the stay is sought pending interparte hearing yet the applicant does not say what happens after interparte hearing.

DETERMINATION

After going through the record, application, affidavits and parties submissions, the Court finds that the only issue is:-

Whether the attachment was regular?

Is stay of execution meritious?

What is the best order in the circumstances?

The Judgment herein was delivered on 28/9/2012.  12 months or year lapsed on 27/9/20123 since then.  In this instant case, the record shows, that the application for execution was done/lodged on 11/9/2013 within 12 months/one year period from the date of the judgement.

The application on record and receipt confirms the aforesaid fact.  It is not therefore true that the execution was applied for after lapse of one year after delivery of the judgement.  Order 22 Rule 18 stipulates that;-

“Where an application for execution is made

More than one year after the date of the decree;…..the court executing the decree shall issue notice to the person against whom execution is applied for requiring him to show cause, and a date to be fixed, why the decree should not be executed against him”.

In the instant matter, there was thus no requirement for issuance of the NTSC.  The proclamation was served on 8/11/2013 to one Mary who has not sworn an Affidavit to deny the same.  The attachment ensured as stipulated in Auctioneers Rule 12( c) of Auctioneers Act No.9 1997 and as notified in the proclamation.

The entire Affidavit and submissions in support of the application to set aside the warrants of attachment and proclamation and the subsequent order thus lack merit as they are misleading on facts and account as to what happened as reflected on the record.

Prayers 2, 3, 4 and 5 are therefore unmeritorious and thus disallowed.  The counsel for the applicant submitted for application for stay of execution pending appeal yet same is not before the court.  The applicant has to move court via order 42 Rule 6 CPR 2010and then talk about filing of the notice of the appeal and delay in supply of the proceedings.

The end result is that the application has no merit and thus it is dismissed with costs.

Dated, signed and delivered in court at Nairobi this 23rd day of October, 2015.

C.KARIUKI

JUDGE