RINALD SIMIYU NG’ANGA v BENJAMIN KULOBA OSEA [2008] KEHC 3472 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Civil Appeal 9 of 2007

RINALD SIMIYU NG’ANGA             ::::::::::::::::::         APPELLANT

VRS

BENJAMIN KULOBA OSEA         ::::::::::::::::          RESPONDENT

(Arising from Original BGM SPM CC NO.235 of  2004)

RULING

This is the ruling in respect of the application dated 14. 3.2007 in prayers (a) and (b) have already been spent and so this ruling is only in respect of prayers (c) and (d) as hereunder;

( c )  That the animals attached by Ongumwe Auctioneers be forthwith released to the appellant pending hearing    and       determination of the appeal herein.

(d)       That in default the entire proceeds of sale     be deposited in court pending the  determination of the appeal herein.

The same is premised on the 5 grounds on the face  of it and the Supporting Affidavit of  Ronald Simiyu Ng’ang’a – the  applicant herein.  The same is opposed by counsel by way of grounds of opposition dated 3. 4.2007 which are nonetheless very general and which has not responded to the various matters of fact raised in the applicant’s affidavit.  The thrust of the application is to the effect that the execution levied against the applicant’s livestock was unlawful and fraudulent.  He has attached copies of the executed warrants (RSN 1 a & b) which are dated 14. 2.2007.  According to  annexure  RSN 2 (b) however the application for execution was made  on 19. 02. 2007  and that is the date it was paid for,  counsel for the applicant urged the court to find that the warrants  could not have been lawfully issued 5 days before the application for execution.  I have looked at the said annexures myself and in the absence of any explanation from the respondent, I am satisfied that the warrants could not have been issued before they were applied for and the necessary fees paid.  This flouted the explicit provisions of  OXXI. R.6 of the Civil Procedure Rules.  There is therefore an illegality which is  clearly manifested through these annexures.  Even the proclamation was done apparently before the application for execution had been made.  This illegality and irregularity alone even in the absence of any other ground suffices to have the execution  process herein set aside.  My view is fortified by the decision of the court of appeal in LAKELAND MOTORS LIMITED –V- HABHAJAN SINGH SEMBI (Civil Appeal NO.11/98 UR) where the Court of Appeal set aside the Execution process that was found to have been irregularly carried out.  As I stated earlier on, the deponments  by the applicant in his affidavit have not been controverted, and the annexures also speak for themselves.  For the aforegoing reasons, I am satisfied that this court cannot countenance such a gross abuse of the court process.

The application dated 14. 3.2007 is therefore allowed in terms of prayers ( c ) and (d)  thereof.  The costs will be in the cause.

W. KARANJA

JUDGE

DELIVERED, Dated and Signed at  Bungoma this 11th  day of March,        2008 in the presence of both counsels.