African Textile Mill Ltd. v Rock Construction & General Renovators Company Ltd. (Miscellaneous Application 85 of 1992)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Application dismissed. The court held that although the first execution warrant of 2 June 1992 had procedural irregularities, they were not fatal. The warrant of 4 August 1992 was properly obtained. After execution had been completed and the judgment debt fully paid, setting aside the warrants would not serve the interests of justice. The applicant was left at liberty to pursue other remedies if it had further complaints against the respondent.

Outcome

Application dismissed after execution warrants had been executed and judgment debt paid in full

Facts

The applicant and respondent had entered into a consent judgment on 3 February 1992 modifying an arbitration award. All items were agreed except item 4, which required assessment by independent experts. The respondent appointed Mr. Kichodo, who produced a report. Before the applicant received the report, the respondent obtained a warrant of attachment dated 2 June 1992. On 4 June 1992, parties agreed to a temporary stay of execution until 12 June 1992. On 11 June 1992, a consent order was signed setting aside the execution order and agreeing to return attached property. However, on 4 August 1992, another warrant of attachment was issued. The applicant sought to set aside both execution orders on grounds of irregularity and alleged fraud. By September 1992, all monies owing had been paid to the respondent.

Issues

1. Whether the execution orders dated 2nd June 1992 and 4th August 1992 should be set aside on grounds of procedural irregularity.
2. Whether a consent order dated 11th June 1992 setting aside the execution order of 2nd June 1992 was valid and binding on the respondent.
3. Whether the execution warrants were obtained fraudulently and constituted an abuse of court process.

Orders

• Application to set aside execution warrants dismissed.
• Each party to bear its own costs.
• Applicant at liberty to bring any other complaint before court.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Act s.101
• Judicature Act 1967 s.3(c)

Cases cited (4)

• Re Nakibuko Chemist (U) Ltd (Company Cause No. 1 of 1976)
• Geraj Lhariff vs. Khotai 1960 374
• Ellis Faber and Co; Limited Vs. Joyce 1911....104 L.T. 5/6
• Scarf vs. Jardine vol. 47 L.T. Reprint

The original judgment as reported. Read the original PDF before relying on any passage.