[2020] KEHC 8117 (KLR)
The court found that the consent order empowered the Bank to verify if any amounts were owed by it to Namsi Interiors Ltd, but did not impose an obligation for joint verification. The Bank's communication to the plaintiffs confirming that no sums were owed constituted compliance with the consent order. Since the...
Source-derived case information.
- Citation
- [2020] KEHC 8117 (KLR)
- Parties
- Applicant: Cecilia Namsi Munyiri; Applicant: Paul Munyiri Kaguambo; Applicant: Namsi Limited; Respondent: Housing Finance Company of Kenya Limited; Respondent: Keysian Traders Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E026 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Enforcement of Consent Order
- Outcome
- Notice of Motion dated 28th January 2019 allowed with costs.
- Judges
- F Tuiyott
- Legal Topics
- Consent Orders, Enforcement of Judgments, Loan Arrears, Bank Customer Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Namsi Munyiri
Applicant
Paul Munyiri Kaguambo
Applicant
Namsi Limited
Applicant
Housing Finance Company of Kenya Limited
Respondent
Keysian Traders Auctioneers
Respondent
Procedural Posture
Notice of Motion / Ruling on Enforcement of Consent Order
Legal Issues
- 1 Whether clause 6 of the consent order dated 30th May 2018 should be enforced.
- 2 Whether the Bank complied with its obligations under clause 3 of the consent order regarding verification of amounts owed to Namsi Interiors Ltd.
Ratio Decidendi
The court found that the consent order empowered the Bank to verify if any amounts were owed by it to Namsi Interiors Ltd, but did not impose an obligation for joint verification. The Bank's communication to the plaintiffs confirming that no sums were owed constituted compliance with the consent order. Since the Bank had fulfilled its duty under the terms of the consent and default persisted on the part of the applicants, the default clause was triggered. Accordingly, the court allowed the Notice of Motion dated 28th January 2019 with costs.
Court Disposition
Notice of Motion dated 28th January 2019 allowed with costs.
Orders
- Clause 6 of the Consent Order issued on 30th May 2018 is enforced.
- Costs of the application to be borne by the applicants.
Full Case Text
Judgment text and source record
51 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION, MILIMANI
HCCC NO. E026 OF 2018
CECILIA NAMSI MUNYIRI............................1ST PLAINTIFF/APPLICANT
PAUL MUNYIRI KAGUAMBO.......................2ND PLAINTIFF/APPLICANT
NAMSI LIMITED..............................................3RD PLAINTIFF/APPLICANT
VERSUS
HOUSING FINANCE COMPANY
OF KENYA LIMITED...............................1ST DEFENDANT/RESPONDENT
KEYSIAN TRADERS AUCTIONEERS..2ND DEFENDANT/RESPONDENT
RULING
1. The Notice of Motion of 28th January 2019 seeks the following prayers:-
1. Clause 6 of the Consent Order issued on 30th May 2018, by this Honourable Court, be enforced.
2. The costs of this Application be borne by the 1st, 2nd and 3rd Applicants.
2. The entire consent of 30th May 2018 reads as follows:-
By consent of Counsel for the 1st, 2nd and 3rd Applicants and Counsel for the 1st Defendant/Respondent it is hereby agreed that:-
1. That the amount of Kshs.1. 5 Million held in Namsi Interiors Limited Account Number 1000067039 with HFC be transferred immediately to Namsi Ltd Loan account to reduce the outstanding loan arears of Kshs.2. 6 Million.
2. That the applicant pay a monthly amount of Kshs.246,000/= to clear the outstanding arrears together with the monthly payments of Kshs.247,057/= as per the charge.
3. That HFC upon verification of any amounts owed to Namsi Interiors Ltd shall consider a set off of the outstanding loan arrears.
4. That the Plaintiff shall bear the costs of the application and the Auctioneers fees as per scale provided under the law.
5. That the Respondents shall immediately call of the Auction due today by Keysian Auctioneers.
6. That in default of the above, execution to issue in 45 days and joint valuation be conducted by Llyod Masika within 30 days of the default, costs to be borne by the Applicants.
7. That the Applicants be allowed to extract and serve the hand written notes/consent as orders of the Honourable Court.
3. It is common ground that enforcement of clause 6 would be contingent to clause 3 of the Consent.
4. In the affidavit of Eunice Kamau sworn on 28th January 2019, the Bank takes the position that it verified the accounts of Namsi Interiors Ltd and communicated the same to the Plaintiffs’ lawyers in a letter of 11th July 2018 which is reproduced below:
Wednesday, July 11, 2018
Okatch & Partners Advocates,
NAIROBI
Dears Sirs,
RE: HCCC NO. E026 OF 2018
CECILIA NAMSI MUNYIRI & OTHERS –VS-
HFC LIMITED & ANOTHER
YOUR REF: 0 & P/479/2017
We refer to the above matter and your letter dated 9th July 2018.
Pursuant to the Consent Order issued on 30th May 2018, our client has since complied with the same. We refer you to our client’s letter dated 10th July 2018 (copy enclosed). Further to the above and in compliance with Clause 3 of the Court’s Order, our client has since interrogated your client’s account. Our client does not owe any sums to yours. What is outstanding, as mine flags, is settlement of yours of professional fees. The invoice will be generated pretty soon.
Yours faithfully
EDWIN ABUYA
Cc: Legal Officer – Litigation
HFC Limited
NAIROBI.
5. On the other hand, the 1st Plaintiff asserts that the Bank has frustrated the conduct of joint verification of the amount owed to the 3rd Defendant and has taken a position that contradicts an earlier one that the Bank owed them some money.
6. I have looked at the consent and reproduced the clause around which the dispute revolves. The consent empowered the Bank to verify if any amounts were owed by it to Namsi Interiors Ltd. There was no obligation for a joint verification. A consent is a contract and that is what the Plaintiffs signed up to. The case of the Bank is that it has verified the account and nothing is owing from it to the Namsi. Having made this communication to the Plaintiffs, then they had carried out their duty under the terms of the consent and since default persists then the default clause kicks in.
7. For that reason, I allow the Notice of Motion dated 28th January 2019 with costs.
Dated, Signed and Delivered in Court at Nairobi this 7th Day of February 2020
F. TUIYOTT
JUDGE
PRESENT:
Kamwami for 1st Respondent
No appearance for Plaintiffs
Court Assistant: Nixon