REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 1502 of 1999

NDEGWA KABOGO........................................................................ PLAINTIFF

VERSUS

CO-OPERATIVE MERCHANT BANK LTD......................... I^st DEFENDANT

JULIUS MAINA..................................................................... 2^ISDDEFENDANT

RULING

Notice of Motion in dated 28th November 2001. It is seeking mainly one orderand that is an order that the warrant issued herein be cancelled and the order forcommittal to prison of the Judgement Debtor be discharged. It is also seeking thatcosts of this application be costs in the cause. The grounds for the application arethat the Judgement Debtor is seriously ill  and not fit to serve a term in prison; thatthere is an error apparent on the face of the record in that before committing theJudgement Debtor to detention, the conditions precedent to such detention set outin Section 38 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 35 Rule2 of the Civil Procedure Rules were not satisfied, and lastly that Judgement Debtorhas not refused to settle the decretal amount The application is brought underOrder 35 Rules 1,2, and 3 Order 50 Rule 1 of the Civil Procedure Rules, Sections3A, 38, 42 and 43 of the Civil Procedure Act Cap 21 Laws of Kenya. It issupported by an Affidavit sworn by the Plaintiff/Applicant and one annexture.

The application is opposed and the Respondent has filed grounds ofOpposition in which they state that the application is misconceived; that there is noacceptable evidence of the Applicant's alleged illness; that the decree has beenoutstanding since 4 October 2000 and no effort had been made to settle any partof the decree; that the order committing the Applicant to civil jail has not beenannexed and therefore the allegation that there is an error apparent on the face ofthe record is incompetent; that the Applicant was present and was fully examinedby the Deputy Registrar before the order of committal was made and that theApplicant has since the passing of the decree, had means to pay some part of theJudgement debt.

First this application is brought under Order 35 Rules 1, 2 and 3 of the CivilProcedure Rules. That rule has been referred to by the Applicant in the grounds ofthe application and even in his Affidavit. That rule is not relevant to thecircumstances of this application. That is the rule which is invoked only insummary procedure Applications To that extent the application is incompetentand the Applicant's counsel did not salvage it by abandoning that rule after hissubmissions in chief and only at the time of his reply to the Respondent'ssubmissions after his attention had been drawn to the defect. I note that in hissubmissions in chief he referred to the same rule twice.

Secondly, it is true that there is no medical report annexed to the applicationto show the present medical condition of the Applicant. What are annexed aretreatment sheets which do not identify the Doctor who took care of the Applicantnor the nature of the sickness and do not state whether or not prison's conditions (civil detention) would be adverse to the Applicant's health. They cannot helpthe Court come to any informed conclusion as to the health condition of theApplicant and certainly one cannot conclude from the same that the Applicant isseriously sick such that he cannot withstand the prison conditions at all.

Thirdly, as to the alleged mistake on the face of the record, I do agree withthe learned counsel for the Respondent that this amounts to seeking a view of theDeputy Registrar's order. The right person to do so is the Deputy Registrar and notthis Court.

Further, on that aspect there was need to annex the order that is to bereviewed. That was not done and the rule to enable me review the application wasalso not invoked in the application.

Lastly, the Applicant says he is unable to pay the debt because he does nothave means or capacity to settle this debt. This cannot be so because he also saysthat he has a piece of land which he wants to sell in order to pay the debt. Thedebt has been outstanding since October 2000. That is now over one year back Ifhe was serious in selling the same piece of land, he would have by now sold it and % would have paid the outstanding amount or part of it before it increased due tointerest over that period. I am not satisfied that the Applicant has no capacity topay even a part of the debt outstanding. He talks of trying to sell property to paythe debt yet he has not filed any agreement between him and any would bepurchaser of that property. I cannot treat that allegation as a serious allegation.

I note that the Applicant appeared before the learned Deputy Registrar on26.11.2001 and gave a statement on the matter. The Advocate for the Decree holderalso made submissions and the Applicant replied to those submissions. Thelearned Magistrate having seen the Applicant before him and having heard theApplicant's position on the matter, it cannot be said that he did not comply with therequirements of Section 38 or order 21 Rule 35.

This application cannot be allowed. I decline to grant it. It is dismissed withcosts to the Respondent.

Orders accordingly.DATED and DELIVERED at Nairobi this 20^th day of December 2001

ONYANGO OTIENO

JUDGE