Industrial & Commercial Development Corporation v Onyando & 3 others [1983] KECA 26 (KLR)
The bottom line
#Kenyan courts can attach and sell your movable property to pay a debt without giving you prior notice, but you can still seek compensation for any irregularity.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court judge was entitled to grant an ex parte stay of execution of the decree where the respondents had not entered appearance nor challenged the decree
- 2.Whether the respondents' application could properly be founded on section 3A of the Civil Procedure Act and Order XXI rule 25 of the Civil Procedure Rules
- 3.Whether notice of an application for execution by attachment and sale of movable property must be given to the judgment debtor
- 4.Whether the appeal costs and the High Court costs should be borne by the respondents
Key legal issues
#Whether an ex parte stay of execution could be granted where the judgment debtor had not entered appearance or challenged the decree
The ex parte stay was wrongly granted; there were no grounds for invoking the court's inherent jurisdiction under section 3A, and Order XXI rule 25 was wrongly cited.
The judge could have adjourned the sale under Order XXI rule 63 to allow service on the appellant instead of granting an ex parte stay. The respondents admitted liability and did not challenge the decree, so instalment payment could not be ordered without the appellant's consent. Order XXI rule 25 applies only where the decree-holder is a defendant in a pending suit, which was not the case.
Whether notice of execution by attachment and sale of movable property is required
No notice to show cause is required for execution against movable property, provided the liberty of the citizen is not threatened; remedies exist under Order XXI rule 69 for injury caused by irregularity.
The only purpose of a notice would be to give the judgment debtor an opportunity to show cause. Where the decree is for money and only movable property is attached, the decree-holder's right to satisfy the decree justifies execution without notice; the debtor who learns of the attachment in time may tender payment and raise the attachment, and may otherwise sue for compensation under rule 69.
Whether the court possessed inherent power to stay execution outside the Appeal Pending context
The former Supreme Court's inherent power ex debito justitiae to stay execution, recognised in Sequeira and Ujagar Singh, may exist in other circumstances, but none were shown here.
Those authorities concerned stays pending appeal; there was no appeal pending here, and the court found no other circumstances calling for the exercise of that jurisdiction.
Legal principles established
#- The Civil Procedure Act and Rules do not require the judgment debtor to be given notice to show cause why his movable property should not be attached and sold in execution of a money decree
- Section 3A inherent jurisdiction is only to be invoked where there are grounds calling for it; it cannot displace the scheme of Order XXI
- A judge may in proper occasions supplement the Order XXI rules by inherent powers, but not on every occasion
- A sale of movable property not vitiated by irregularity does not preclude an injured person suing for compensation or recovery of property
Court orders
#- 1.Appeal allowed with costs
- 2.Respondents to pay the costs of the appeal and the proceedings in the High Court (implied by allowing the appeal which sought that order)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court ruling; no specific constitutional or statutory jurisdictional provision is cited in the judgment
Relief refused
#Respondents' prayer for leave to liquidate the decretal amount by instalments
The judge could not order payment by instalments without the decree-holder's consent, which was refused; the prayer had not been answered by the judge below and the court would not grant it
Costs
Appeal allowed with costs to the appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where the liberty of the citizen is not threatened and the property is movable the Act and Rules do not require the judgment debtor to be given notice to show cause why his moveable property should not be attached and sold in execution of a decree
Accordingly, I am of view that this appeal should be allowed with costs for the reasons I have set out.
I agree that this appeal should be allowed with costs for the reasons given by Kneller JA in his judgment. As Potter JA also agrees it is so ordered.
There may be occasions when a judge might properly supplement those rules by invoking his inherent powers in order to do justice between the parties, but this was not such an occasion.
Order XXI rule 25 relates to the court's power to stay execution of a decree in a suit if the decree-holder is a defendant in another pending suit in which the judgment debtor in the concluded one is the plaintiff, which is not so in this one, so order XXI rule 25 was wrongly cited at the head of the summons.
Issues in the judgment
#The judgment misdescribes section 3A in places as part of 'the Civil Procedure Rules' while later correcting that it belongs to the Civil Procedure Act, and the court itself notes the respondents' advocates' error
The judgment cites 'section 35 Civil Procedure Rules' alongside sections 38 of the Act, an apparent drafting inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Industrial & Commercial Development Corporation v Onyando & 3 others [1983] KECA 26 (KLR)", Case Analysis (1983). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/26/eng@1983-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.