Mwangi & another v Kimende [2022] KEHC 10508 (KLR)

Mwangi & another v Kimende (Civil Suit 635 of 2010) [2022] KEHC 10508 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10508 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 635 of 2010

JK Sergon, J

June 17, 2022

Between

Edward Ngera Mwangi

1st Plaintiff

Phillis Rose Mwangi Thuo

2nd Plaintiff

and

Veronica Ndinda Kimende

Defendant

Ruling

1. The 1st and 2nd plaintiffs’/decree holders herein took out the Notice of Motion dated 17th March, 2022 and sought for the orders hereunder:i.Spent.ii.Spent.iii.That time for execution of the decree herein be extended.iv.That the Officer Commanding Capital Hill Police Station be ordered to assist, maintain law and order and oversee peace for the Court Bailiff to trace the judgment debtor and execute warrants of arrest.v.That costs be borne by the judgment debtor.

2. The Motion is supported by the grounds set out on its body and the facts stated in the affidavits of the 1st decree holder, Martha Wangari and advocate Purity K. Mbabu.

3. To oppose the Motion, the defendant/judgment debtor swore a replying affidavit on 18th March, 2022, to which Purity K. Mbabu rejoined with a supplementary affidavit she swore on 12th May, 2022.

4. When the application came up for hearing, the parties’ advocates chose to rely on the averments made in the respective affidavits.

5. I have considered the grounds set out on the face of the Motion and the facts deponed in the affidavits in support of and in resistance thereto.

6. It is clear that the application concerns itself with the extension/enlargement of time within which to execute the judgment.

7. On their part, the decree holders state that the default judgment was entered on 21st March, 2010 and hence the prayer for extension of time to enable them execute it, before the window period runs out.

8. The decree holders also state that it is the judgment debtor who has hindered the execution process by filing numerous applications in a bid to evade arrest and that despite making a proposal on payment of the decretal sum on 12th August, 2021, the judgment debtor has not made any such payments to date.

9. It is the averment by the decree holders that their attempts at tracing the whereabouts of the judgment debtor have been futile and hence the prayer for assistance by the police in enabling the court bailiff execute the warrants of arrest already in place.

10. On her part, the judgment debtor states inter alia, that the instant Motion lacks merit for the reason that there has at all material times been an existing order in place barring execution of the decree and that the Motion has been brought under trickery and deceit.

11. The judgment debtor also states that the matter has remained idle for 12 years now and hence there is no proper basis for extending the time required for execution of the decree.

12. The judgment debtor therefore urges this court not to grant the orders sought therein.

13. Under the provisions of Section 95 of the Civil Procedure Act and Order 50, Rule 6 of the Civil Procedure Rules, the courts have discretionary power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

14. Section 4(4) of the Limitation of Actions Act provides that:“An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered...”

15. Upon my study of the record, it is apparent that a default judgment was entered against the judgment debtor on 11th March, 2011 whereas the instant Motion was brought sometime on or around 17th March, 2022.

16. Upon my further study of the record, I note that the judgment debtor subsequently filed the application dated 6th April, 2011 wherein she sought to have the interlocutory judgment set aside and further sought leave of the court to file her statement of defence out of time.

17. From the record, it is clear that the abovementioned application was not prosecuted by the judgment debtor, the result of which the decree holders applied for execution of the decree.

18. The record shows that since then, various applications have been filed in the matter, especially by the judgment debtor.

19. Upon my perusal of the record, I observed that when the parties recently appeared before the court in respect to the judgment debtor’s application dated 8th November, 2021, the court directed that there be a stay of execution of the decree and warrants of arrest issued against the judgment debtor pending the hearing and determination of the aforementioned application dated 6th April, 2011.

20. Upon my further perusal of the record, I observed that the application dated 6th April, 2011 was subsequently dismissed on 29th November, 2021 for non-attendance, thereby prompting the judgment debtor to file the application dated 14th November, 2021 seeking its reinstatement.

21. Upon hearing the parties on that application, this court vide the ruling delivered on 28th March, 2022 dismissed the application on the basis that no reasonable explanation had been given for the non-attendance and for the inordinate delay of 10 years in prosecuting the application dated 6th April, 2011.

22. From the foregoing circumstances, it follows that there are currently no stay of execution orders in place, contrary to the averments which were made by the judgment debtor. There is also nothing to indicate that this court is in any way functus officio as stated by the judgment debtor, in order to hinder it from making a determination on the instant Motion.

23. Furthermore, there is nothing to indicate that the default judgment; being entered over a decade ago; has been set aside or challenged on appeal.

24. Upon considering the foregoing circumstances, I am persuaded that it is in the interest of justice to grant the orders being sought by the decree holders.

25. The upshot is that the Motion dated 17th March, 2022 is allowed thus giving issuance of the following orders:i.The time for execution of the decree herein be extended for 12 months.ii.The Officer Commanding Capital Hill Police Station be and is hereby directed to assist to maintain law and order and oversee peace for the Court Bailiff to trace the judgment debtor and execute the warrants of arrest.iii.The costs of the Motion shall be borne by the defendant/judgment debtor.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ...........................J. K. SERGONJUDGEIn the presence of:.................... for the 1st and 2nd Plaintiffs/Decree Holders.................... for the Defendant/Judgment Debtor