Safaricom Savings & Credit Co-operative Society Ltd v Macakiage [2023] KECPT 63 (KLR)

Safaricom Savings & Credit Co-operative Society Ltd v Macakiage (Tribunal Case 368 (E173) of 2021) [2023] KECPT 63 (KLR) (16 February 2023) (Ruling)

Neutral citation: [2023] KECPT 63 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 368 (E173) of 2021

M Mwatsama, Vice Chair, M. Mbeneka & Gitonga Kamiti, Members

February 16, 2023

Between

Safaricom Savings & Credit Co-Operative Society Ltd

Claimant

and

Tom Onyango Macakiage

Respondent

(Coram before Hon. Mjeni Mwatsama-D/Chairperson, Gitonga Kamiti and M.Mbeneka)

Ruling

1. The Application for determination is Notice of Motion dated February 15, 2022 filed on March 7, 2022. The Application seeks for;a.That, a prohibitory order be issued against LR No KABETE/KIBICHIKO/3826 situated in Kiambu against sale, transfer, charging of the property, or dealing in any way of the property by the Respondent, his agents, servants and or any other persons working under the direction of the Respondent/judgment debtor.b.That, a prohibitory order issued be registered against the title at the Kiambu Lands Registry.c.That, costs be in the cause.The Application is supported by the Affidavit of Haggai Chimei sworn on February 15, 2022. He states the Claimant obtained Judgment in this matter and extracted a decree and certificate of costs dated November 5, 2021. The Respondent/Judgment-Debtor was to pay the decretal amount but later declined.The Judgment-Debtor in a bid to defeat proclamation moved the property.The Judgment-Debtor has been transferring his property in an effort to defeat execution and thus if prohibitory orders are not issued there is a risk of Respondent/judgment-Debtor disposing off the property LR No Kabete/Kibichiko/3826.

2. The Respondent/Judgment-Debtor had not at the time of writing this ruling filed a response to the Application.The Application as it stands is unopposed we further note default judgment was entered on November 1, 2021 and there has been no attempt by Respondent/Judgment-Debtor to set it aside if at all or respond to the Application by Claimant/Applicant as it mere.The Respondent are clearly not interested in the matter.

3. The orders sought in the Application is an order of prohibition under Order 22 Rule 48(1) Civil Procedure Rule which states;-Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property.Thus the Application not being opposed we allow the Application dated as prayed with cost to the Claimant/Applicant.

RULING, READ AND DELIVERED VIRTUALLY ON 16TH FEBRUARY, 2023. HON. MJENI MWATSAMA D/CHAIRPERSON SIGNED 16. 2.2023MARIA MBENEKA MEMBER SIGNED 16. 2.2023GITONGA KAMITI MEMBER SIGNED 16. 2.2023In the presenceChimei Advocate for the ClaimantNo Appearance for RespondentJ. Mutai - C/AssistantSignedHon. Mjeni MwatsamaDeputy Chairperson16/2/2023