The High Court case of Papada Holdings Ltd & Anor versus Christopher Kisembo & Anor HCMA No. 0497/2021 (Commercial Division)
1) The term ” representative” under S. 34 (1) & (3) of the CPA has been interpreted to include not only legal representatives of a person’s estate upon death, but his or her representative in title, including a purchaser of his interest;
2) The powers of a court executing a decree cannot go behind the decree, and must execute it as it stands. It cannot consider its merits & demerits, whether it appears to be vague or questionable, or was obtained by fraud, or was obtained against the wrong person.
In the case above, the Respondents raised an objection that the 1st Applicant company was not fully constituted, as one of the directors had passed away; and that the company was, therefore, not capable of executing the decree. Court, agreeing with M/S Lawgic Advocates for the Applicant, overruled the objection and held that at the point of executing the decree, court only needs to satisfy itself that, by the terms of the decree, or from its nature, the applicant party is legally entitled to seek its execution. Therefore, when a corporate body files an application for execution, and on the face of that application, that corporate body is the party to the litigation entitled to execute the order or decree, there is no requirement for court to inquire into the internal irregularities at the stage of execution, unless there is a complaint by the shareholders of the company about the application for execution.
3) A question relating to the execution, discharge or satisfaction of a decree may be raised at any time after it’s been passed, until its satisfaction in full; there doesn’t have to be a pending application for execution for such question to be raised.
4) For an order to be executable:
- There must have been an adjudication in a court proceeding;
- It must have determined the substantive as opposed to the procedural rights of the parties, with regard to all or any matter in dispute in a proceeding;
- The determination must be of a conclusive nature;
- There must be a formal and unambiguous expression of the adjudication;
- Its enforcement must not be barred by limitation or other circumstances;
- It must have the force of execution and not merely a declaration of rights;
- There should be unfulfilled or pending obligations due from the judgment debtor to the judgment creditor under the terms of the order.