[2019] KEHC 3509 (KLR)
The court found that the sum of Kshs. 141,925, awarded to the applicant by decree in Civil Suit No. 448 of 2016, was not included in the consent dated 19th September, 2018, which sought to compromise the insolvency cause. There was no evidence that the decree had been set aside or satisfied, and the respondent's...
Source-derived case information.
- Citation
- [2019] KEHC 3509 (KLR)
- Parties
- Applicant: David Biketi Wati; Respondent: Chris Munga Bichage; Garnishee: Sidian Bank Ltd; Garnishee: Lumalas Achieng & Kavere, Advocates
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Insolvency Cause 2 of 2017
- Procedural Posture
- Insolvency Cause / Ruling on Notice of Motion for Release of Withheld Funds
- Outcome
- application allowed with costs
- Judges
- HK Chemitei
- Legal Topics
- Garnishee Orders, Decretal Sum Enforcement, Consent Judgment, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Biketi Wati
Applicant
Chris Munga Bichage
Respondent
Sidian Bank Ltd
Garnishee
Lumalas Achieng & Kavere, Advocates
Garnishee
Procedural Posture
Insolvency Cause / Ruling on Notice of Motion for Release of Withheld Funds
Legal Issues
- 1 Whether the sum of Kshs. 141,925 withheld at Sidian Bank Ltd should be released to the applicant.
- 2 Whether the consent dated 19th September, 2018 compromised all outstanding sums including the decretal sum in Civil Suit No. 448 of 2016.
- 3 Whether the decree in Civil Suit No. 448 of 2016 remains valid and enforceable.
Ratio Decidendi
The court found that the sum of Kshs. 141,925, awarded to the applicant by decree in Civil Suit No. 448 of 2016, was not included in the consent dated 19th September, 2018, which sought to compromise the insolvency cause. There was no evidence that the decree had been set aside or satisfied, and the respondent's assertion that the consent covered all outstanding sums was not supported by the record. The court held that the decree remained valid and enforceable, and the applicant was entitled to the release of the withheld funds. Accordingly, the application was allowed with costs to the applicant.
Court Disposition
application allowed with costs
Orders
- The sum of Kshs. 141,925 withheld at Sidian Bank Ltd to be released to the applicant.
- The applicant is awarded costs of the application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
INSOLVENCY CAUSE NO. 2 OF 2017
DAVID BIKETI WATI..................................................................CREDITOR
VERSES
CHRIS MUNGA BICHAGE............................................................DEBTOR
AND
SIDIAN BANK LTD
LUMALAS ACHIENG & KAVERE, ADVOCATES..........GARNISHEES
RULING
1. The Applicants notice of motion dated 14th January, 2019 prays for an order that the sum of kshs. 141,925 withheld at Sidian Bank Ltd be released to him. The same is supported by his affidavit sworn on the same date.
2. According to the applicant the aforestated amount was inadvertenly left behind by the Debtor despite the ruling of this court of 11th December, 2018 in which he was to be paid a total sum of kshs. 13,930,925.
3. The Debtor on the other hand through the replying affidavit sworn on 4th February, 2019 has disputed the same arguing inter alia that the applicant was paid in full pursuant to the consent dated 19th September, 2018 which compromised this Insolvency Cause.
4. The court has perused this application as well as the Applicant’s submissions on record. The court being seized of this matter from the beginning has a good history. It is true that the parties entered into consent to compromise the cause on the 19th September, 2018. However while the same was in motion the applicant seemed aggrieved and he filed an application dated 13th November, 2018 in which he sought garnishee orders to be paid the entire sum of kshs. 13,930,925. The said application was allowed.
5. The court has perused the consent dated19th September, 2018 in which the parties then attempted to compromise the cause. Under paragraph 2(a,b) thereof the issue of decretal sum in case number 448 of 2016 has been mentioned as well as costs in the Judicial Review Application No. 41 of 2016 as well as in this petition which totals Kshs. 250,000.
6. Contrary to the averments by the Debtor in his replying affidavit dated 4th February, 2019 it does not refer to the costs in Civil suit No. 448 of 2016 at Kitale as per the decree dated 25th May, 2015. The said decree awarded the Applicant the sum of Kshs. 141,925 an amount which was not captured in the consent by the parties. There is no evidence that the decree has been set aside by the said court or by the parties herein. The same therefore remains valid.
7. For the above reasons I find the Applicants application merited . The same is therefore allowed with costs.
Dated, signed and delivered in open Court at Kitale this 15th day of May, 2019.
H. K. CHEMITEI
JUDGE
15/5/19
In the presence of:-
Mengich for Samba for Respondents
No appearance for the Applicant
Court Assistant – Kirong
Ruling read in open court.