[2019] KEHC 12412 (KLR)
The court found that the in duplum rule does not apply to the present case because the debt arises from a contract for cleaning services and not from a financial institution/customer relationship as contemplated by section 44A of the Banking Act. The court further determined that the issue of alleged overpayment is...
Source-derived case information.
- Citation
- [2019] KEHC 12412 (KLR)
- Parties
- Respondent: Byron Trustkett Investments Limited; Applicant: Sport Stadia Management Board; Respondent: Standard Chartered Bank (Ruaraka Branch)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 286 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Consent
- Outcome
- Application for setting aside consent deferred pending audit.
- Judges
- F Tuiyott
- Legal Topics
- Setting Aside Consent, In Duplum Rule, Debt Recovery, Garnishee Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Byron Trustkett Investments Limited
Respondent
Sport Stadia Management Board
Applicant
Standard Chartered Bank (Ruaraka Branch)
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Consent
Legal Issues
- 1 Whether the consent entered on 15th November 2018 should be set aside.
- 2 Whether the in duplum rule applies to the debt in question.
- 3 Whether there has been overpayment by the judgment debtor.
Ratio Decidendi
The court found that the in duplum rule does not apply to the present case because the debt arises from a contract for cleaning services and not from a financial institution/customer relationship as contemplated by section 44A of the Banking Act. The court further determined that the issue of alleged overpayment is an accounting matter that requires an audit to establish the amounts paid and any outstanding balance. Accordingly, the court directed the parties to jointly appoint an accountant to audit the debt and report to the court, with the costs of the audit to be shared initially and a final order on costs to be made after the report is received.
Court Disposition
Application for setting aside consent deferred pending audit.
Orders
- Parties to jointly appoint an accountant within 14 days to audit the debt and report to court on payments made and any outstanding amount.
- If parties fail to agree on an accountant, the chairperson of ICPAK to appoint one.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
HCC NO. 286 OF 2015
BYRON TRUSTKETT
INVESTMENTS LIMITED................... DECREE HOLDER/RESPONDENT
VERSUS
SPORT STADIA
MANAGEMENT BOARD....................JUDGMENT DEBTOR /APPLICANT
AND
STANDARD CHARTERED BANK
(RUARAKA BRANCH).....................................GARNISHEE/RESPONDENT
RULING
1. The Judgment Debtor seeks to set aside the consent entered on 15th November 2018. This is prayed in the Notice of Motion dated 16th May 2019.
2. In an affidavit in support of the Motion, Pius Metto avers that the Defendant has fully paid the decretal sum and that the consent was entered through fraud. In addition, that the amount sought by the Plaintiff is contrary to the in duplum Rule.
3. This Court has considered the arguments made by the parties and the material before it.
4. This Court would first have to make short thrift of the in duplum rule argument. In duplum means double and is sometimes used in the context of double damages (see Tenth Edition of Black’s Law Dictionary).As a statutory phenomenon it is found in section 44A of the Banking Act which limits the amount of interest that can be recovered by a financial institution from a defaulting debtor. That rule is not applicable here because the debt does not arise from a financial institution/customer relationship. It is from a contract for cleaning services.
5. As to whether there has been overpayment, that is an accounting issue. It would be prudent for accounts to be taken before this Court can consider the application further.
6. I direct that parties do within 14 days hereof jointly appoint an accountant to audit the debt herein and report to Court on what has been paid and what amount, if any, is due. Should the parties fail to agree on an accountant then the chairperson of the Institute of Certified Public Accountants of Kenya (ICPAK) do appoint such accountant. Although parties will initially share the costs of the accountant and audit exercise, this Court will make a final order in respect thereof upon receiving the accountant’s report.
Dated, Signed and Delivered in Court at Nairobi this 22nd Day of November, 2019
F. TUIYOTT
JUDGE
PRESENT;
Hassan for Defendant
Jaoko for Ochieng for Decree Holder
Court Assistant: Nixon