Wamutegi v Ufundi Sacco Society Ltd [2023] KECPT 735 (KLR)

Wamutegi v Ufundi Sacco Society Ltd (Tribunal Case 228 of 2020) [2023] KECPT 735 (KLR) (Civ) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 735 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 228 of 2020

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 31, 2023

Between

Henry Wandeto Wamutegi

Claimant

and

Ufundi Sacco Society Ltd

Respondent

Ruling

1. The matter for determination is for a notice to show cause for the Respondent dated 19th March 2021, against the Judgement Debtor to show why warrants of arrest should not be issued against them. The Respondents filed their response vide a Replying Affidavit dated 25th October 2022. The Respondent claims that he was unable to refund the deposits as required by the Claimant because they are currently faced with acute financial shortage and the only way the Respondent can raise money to refund the Claimant is by sale of its assets.

2. The Respondent further claims, that he offered to sale its property situated on LR No. 209/2571 in order to settle this claim. The Respondent claims that he requires time to conclude the outstanding issues and proceed to sell the property in question.

3. As such the issue for determination is whether the warrants of arrest should be lifted.Order 22 rule 18 of the Civil Procedure Rules, 2010 provides that Courts should issue a notice to the Judgement Debtor requiring him to show cause why the decree should not be executed. Further, order 22 rule 22 of the Civil Procedure Rules, 2010 provides that the Court shall upon sufficient cause being shown, stay the execution of such decree.

4. Similarly, section 38 of Civil Procedure Act, 2010 prohibits the Court from making an order of execution of any decree unless the Judgement Debtor has first been given opportunity of showing cause why he should not be committed to prison. In addition, it provides that the Court shall not issue an order of execution by detention in prison unless the Judgement Debtor wants to delay execution of the decree by leaving the Courts jurisdiction or by transferring or concealing property and unless the Judgement Debtor has means to pay the amount of the decree.

5. In this case the Respondent was given time to show cause why the warrants of arrest should not be issued against them. They came on record and claimed that they are willing to pay the decretal amount but need time to proceed to sell the property situated on LR No. 209/2571. The Respondents have not shown that they want to delay execution of the decree by either leaving the Courts jurisdiction or by transferring or concealing property, and have shown that they have means to pay the decretal amount. Therefore, they have satisfied the provisions of section 38 of Civil Procedure Act, 2010.

UpshotThe warrant of arrest is lifted and the Judgement Debtor is ordered to pay the decretal sum within 40 days herein since the Claimant is entitled to the fruits of the Judgement entered on 3/9/2020.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. Hon. Beatrice Kimemia Chairperson Signed 31. 8.2023Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023Hon. Beatrice Sawe Member Signed 31. 8.2023Hon. Fridah Lotuiya Member Signed 31. 8.2023Hon. Philip Gichuki Member Signed 31. 8.2023Hon. Michael Chesikaw Member Signed 31. 8.2023Hon. Paul Aol Member Signed 31. 8.2023Tribunal Clerk JemimahHon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023