Please Wait. Searching ...
Gichuki v Gitahi (Civil Appeal 15 of 2019) [2022] KEHC 16163 (KLR) (8 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16163 (KLR)
Republic of Kenya
Civil Appeal 15 of 2019
FN Muchemi, J
December 8, 2022
Between
Beatrice Gichuki
Applicant
and
Julius Muturi Gitahi
Respondent
Ruling
Brief Facts
1.The application dated October 4, 2021 seeks for orders to set aside the warrants of arrest issued in CMCC No 421 of 2013 on grounds that they are illegal and contrary to section 38 of the Civil Procedure Act.
2.The respondent filed a replying affidavit dated October 22, 2021 in opposition to the application.
Applicant’s Case
3.The applicant’s deposes that warrants of her arrest were issued on September 6, 2021. The applicant states that she was arrested by police from Wanguru Police Station and brought to the magistrate’s court on September 24, 2021.
4.The applicant contends that the said warrants of arrest were unlawfully obtained as she was not given an opportunity to show cause why she should not be committed to civil jail. She further contends that she is not obstructing or delaying the execution of the decree nor is she likely to abscond or leave the jurisdiction of this court.
5.It is further deposed that since judgment was delivered, the applicant has filed a notice of appeal and she believes that the same is arguable with very high chances of success and that she ought to be given an opportunity to ventilate the same without harassment by the respondent.
6.The applicant states that the insurance has paid the respondent part of the decretal amount Kshs 3,000,000/- which she believes is enough security in the circumstances of the case.
7.The applicant states that she used to run a small rice business which has been adversely affected by covid 19 and unfair competition by importation from China and other countries and thus raising the amount quoted in the warrants at ago is impossible on her part. Moreover, the applicant contends that the interest imposed on the decretal sum is irregular and does not take into account the deposit paid and thus the amount should not be more than Kshs 645,139.20/-.
The Respondent’s Case
8.The respondent states that the application is bad in law in that this court is functus officio having rendered its decision on the appeal on June 17, 2021. The respondent further avers that the proper forum for the present application ought to be in the trial court or in the Court of Appeal where the 2nd appeal is currently pending.
9.The respondent contends that the applicant through her advocate on September 24, 2021 made a proposal on settlement of the outstanding sum of Kshs 3,540,445/- in the trial court when she was presented before the court for committal proceedings, which proposal was amenable to the respondent. The terms of the proposal was:-a.The sum of Kshs 300,000/- to be paid on or before October 8, 2021b.The balance to be paid in equal monthly installments of Kshs 100,000/- till payment in full.
10.The respondent states that it is unconscionable and unfathomable that the applicant is now reneging on her proposal made in court by way of consent of the parties herein to the extent of even denying the warrants of arrest which brought her to court without setting aside the consent orders issued by the trial court on September 24, 2021. Furthermore, the applicant has defaulted in making payment as proposed on September 24, 2021 in the trial court resulting in the issuance of fresh warrants of arrest by the trial court.
11.Parties hereby disposed of the application by way of written submissions.
The Applicant’s Submissions
12.The applicant submits she was arrested on September 24, 2021 and brought before the court on the same day pursuant to whereas orders for payment of the balance of the decretal amount were made. The applicant submits that it is that procedure in obtaining the orders of September 24, 2021 that she prays that the court finds it unlawful for no notice prior to the arrest had been issued by the court as the law requires.
13.The applicant further submits that the interest on the decretal amount indicated on the warrants of arrest are exorbitant and contrary to the law. From the attached warrants of arrest, the applicant states that judgment was entered on September 16, 2015. The amount of Kshs 3,000,000/- was paid on November 8, 2016 leaving a balance of Kshs 2,150,464/-. The applicant further argues that the period between November 8, 2016 to September 6, 2021 would be slightly under 5 years and therefore the interest accrued should have been Kshs 645,139.20 and yet the warrants show Kshs 1,247,269/- which is unlawful.
14.The applicant further submits that the amount of Kshs 3,000,000/- which has been paid in partial satisfaction of the decree is sufficient security and thus stay ought to be granted by this court. To support her submissions, the applicant relies on the case of Joseph Kamira Wanjau v Rev Lloyd K Kabaiya & Others Nakuru Civil Case No 3 of 2014.
The Respondent’s Submissions
15.The respondent submits that this court is functus officio having pronounced itself on the appeal on June 17, 2021 whereby it dismissed the applicant’s appeal in its entirety. The respondent argues that the applicant should have moved the trial court where execution proceedings are ongoing and not the current court which cannot do anything at the current point.
16.The respondent further argues that the applicant was present in the trial court on September 24, 2021 after the warrant of arrest were executed and that through her advocate, she made a proposal on settling the outstanding loan amount of Kshs 3,540,445/-. The respondent contends that the consent order has not been set aside by the applicant and it is thus astonishing to see the applicant renege on her own proposal by seeking to set aside the warrants of arrest in a decree in which she already settled in part.
The Law
Whether the applicant is entitled to the orders sought.
17.The applicant has brought the instant application under section 38 of the Civil Procedure Act contending that the warrants of arrest issued against her are illegal as she was not accorded a chance to show cause why she should not be arrested and committed to civil jail. The respondent however contends that this court is an appellate court and it is functus officio. Therefore the applicant ought to have ventilated her application in the trail court.
18.This court is therefore tasked with first ensuring that it has jurisdiction to entertain the application. Indeed the question of jurisdiction was explained in the case of Owners of the Motor Vessel “Lilian S” v Caltex Kenya Limited [1989] KLR 1 where the court held:-
19.In light of the foregoing, is this court therefore functus officio. The Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR held that:-
20.The Supreme Court in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads:-
21.The applicant filed an appeal in this court against the ruling of the trial court in CMCC No 421 of 2013. The claim arose from a road traffic accident which occurred on January 3, 2010 and the appellate court dismissed the appeal on June 17, 2021. This court having determined the appeal has become functus officio and cannot be approached on a purported appeal in the same matter. The applicant ought to have filed the instant application in the trial court which passed the decree and which issued the warrants of arrest. Section 30 of the Civil Procedure Act is clear that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. In light of the foregoing, this court has no jurisdiction to entertain the application.
22.It is my finding that this application dated October 22, 2021 is incompetent and misconceived and that having been rendered funtus officio by determining the appeal, cannot entertain the said application.
23.Consequently, the application is hereby dismissed with costs.
24.It is hereby so ordered.
DATED AND SIGNED AT NYERI THIS 8TH DAY OF DECEMBER, 2022.F MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 8TH DAY OF DECEMBER, 2022.
