1.The application before this Court is the ex parte Applicant’s Notice of Motion application dated November 18, 2021 brought under Order 53 Rules 3 and 4 of the Civil Procedure Rules 2010 and Sections 8 and 9 of the Law Reform Act.
2.The Notice of Motion seeks the following orders:i.An order of certiorari to bring into this Court for purposes of quashing the 1st Respondent’s Warrant of Attachment of movable property in execution of Decree for Money and Warrant of Sale of Property in Execution of Decree for Money both October 19, 2021 issued in CMCC No 9058 of 2018 (Milimani) Kenya Commercial Bank Ltd v. John M. Khaminiwa T/A Khaminwa & Khaminwa Advocates.ii.An order of Prohibition staying any further proceedings in CMCC No 9058 of 2018 (Milimani) Kenya Commercial Bank Ltd v. John M. Khaminiwa T/A Khaminwa & Khaminwa Advocates.iii.Costs.
3.The application is supported by the grounds in the Supporting Affidavit of Dr. John M. Khaminwa sworn on November 10, 2021 and the Statement of Facts dated November 10, 2021.
4.The ex parte Applicant’s case is that pursuant to the Court’s Judgment and Decree dated April 30, 2020 the Interested Party herein instructed M/s Bemac Auctioneers to proclaim property in the ex parte Applicant’s offices.
5.The copies of the Warrant of Attachment and of Movable property in execution of Decree for Money and Warrant of Sale of Property in Execution of Decree for Money issued by the 1st Respondent is dated October 19, 2021.The Auctioneers are said to have also attached the ex parte Applicant’s personal property.
6.The ex parte Applicant challenges the Warrants of Attachment as they refer to the Judgment date as April 30, 2021 yet the same was delivered on April 30, 2020.
7.The issuance of the Warrants according to the ex parte Applicant contravenes the provisions of Order 22 rule 18(1)(a) of the Civil Procedure Rules,2010 as the Warrants were issued before a Notice to show Cause was issued to the ex parte Applicant.
8.The Respondents in response to the application filed Grounds of Opposition dated February 8, 2022. The Respondents’ raised 8 grounds as follows;i.That the Application is premature, incompetent. misplaced an abuse of the court process.ii.That the Application is fatally defective as it offends the mandatory provisions of Section 9 (2) of the Fair Administrative Action Act No 4 of 2015.iii.That the Application as drafted is an Appeal disguised as a Judicial Review Application.iv.That Application as drawn offends Article 160 (5) of the Constitution as read together with Section 6 of the Judicature Act.v.That the 1st Respondent acted within the premises of the Law.vi.That judicial review cannot be used to curtail or stop statutorily bodies or public officers from lawful exercise of power within their statutorily mandates.vii.That there are no orders sought against the Hon. Attorney-General and as such ought to be struck off the proceedings.viii.That the Application is a misconception and ought to be dismissed with costs to the Respondents.
9.The Interested Party also filed a Replying Affidavit sworn by John Katiku who swears to be a Managing Partner at the firm of Musyoka Wambua & Katiku Advocates the firm on record for the Interested Party.
10.Similar to the Respondents’ case the Interested Party contends that the ex parte Applicant’s application is premature and that the ex parte Applicant has failed to first exhaust the remedies available to him under the law.
11.It is also the Interested Party’s case that the decree subject of which the Warrants of Attachment are issued is dated June 11, 2021 while the Warrants are dated October 19, 2021 and therefore the same cannot be considered to have been issued one (1) year apart. According to the Interested Party it was under no obligation to serve a Notice to Show Cause as claimed.
12.The ex parte Applicant is said to have actively participated in the proceedings before the 1st Respondent and that the instant application is an attempt at denying the Interested Party the fruits of its litigation. It is contended that the ex parte Applicant has failed to demonstrate that the proceedings in CMCC 9058 of 2018 are tainted with illegality or irregularity so as to justify intervention of this honourable court.
Analysis and Determination
13.Having taken into account the application before this court, the grounds for it, the affidavit evidence, the responses and the knowledgeable submissions made by counsel, two issues crystallize for determination and these are;i.Whether the ex parte Applicant is entitled to the judicial review orders sought.ii.Whether the ex parte Applicant’s application is merited.
15.The ex parte Applicant in his submissions dated July 18, 2022 urges that a Decree is made when the Court pronounces its determination. Further that in the instant case this was on April 30, 2020 and not when the document is signed. According to him the subsequent execution process based on the Warrants of Attachment was thus ?awed as the provisions of Order 22 Rule 18 were not adhered to.
17.The 2nd Respondent in its written submissions urges that the import of the doctrine of exhaustion of remedies with respect to judicial review is that judicial review should be considered as a remedy of last resort, that is, it is the final recourse only after dispensing with other legally available remedies and to buttress this argument the case of Market Plaza Limited V Commissioner for Lands & 3 others  eKLR is cited. Further that the criteria for determining what constitutes an exceptional circumstance to warrant the grant of such prerogative orders was succinctly provided by the court in Republic vs. National Environmental Management Authority  eKLR.
18.It is the 2nd Respondent’s case that, an order of certiorari will issue when the impugned decision was marred with illegality such as being made or rendered without or in excess of the administrative body’s jurisdiction.
19.The Interested Party in its written submissions argues that the prerogative orders of certiorari and prohibition are not applicable in this instance since the ex parte applicant has failed to prove before this honorable court as to why he is entitled to the said orders and further that his sole argument is that he was alarmed by the proclamations of the judgment which is vague and not enough reason to entitle him the judicial review remedies.
23.The provisions of Order 22 Rule 18 (1)(a) are clear cut and do not require further interpretation. The Rule provides that a Notice to Show Cause is issued where an application for execution is made more than one (1) year after the date of the decree and as has been stated by the courts as seen in the above decisions the date referred as the date of the decree is the date of the issuance of the said decree.
24.In our instant case the in CMCC No 9056 of 2018 was issued on June 11, 2021 and the Warrant of Attachment of Sale is dated October 19, 2021 this is just well over four (4) months and as such there was no need for the issuance of a Notice to Show Cause to the ex parte Applicant.
25.The 1st Respondent was therefore well within its jurisdiction in issuing the said warrants. For this reason, I find that the ex parte Applicant has not merited the Judicial Review orders sought.
26.The ex parte applicant’s application dated November 18, 2021 is hereby dismissed. I make no orders as to costs.