[2025] KEHC 2922 (KLR)

Dewwdrop Enterprises Limited v Muthee & another (Petition 399 of 2018) [2025] KEHC 2922 (KLR) (Constitutional and Human Rights) (7 March 2025) (Ruling)

Neutral citation: [2025] KEHC 2922 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 399 of 2018

EC Mwita, J

March 7, 2025

Between

Dewwdrop Enterprises Limited

Petitioner

and

William Muthee

1st Respondent

Chief Magistrate’S Court, Milimani Commercial Courts

2nd Respondent

Ruling

1. This is a ruling on the petitioner’s application dated 9th May 2022. The application is brought under Orde 3 rule 9 of the Civil Procedure Rules, sections 1A and 1B of the Civil Procedure Act and several Articles of the Constitution. It seeks an order declaring that the petitioner has fully satisfied the judgment and decree dated 28th March 2019. The application is supported by the grounds on its face, the affidavit of the same date sworn by Edward Thiong’o Wachira and written submissions.

2. The petitioner’s position is that the court dismissed the petition and ordered it to pay costs. The application for review of that judgment was dismissed on 8th July 2021. The appeal in the Court of Appeal against the ruling is still pending. In the meantime, the 1st respondent has filed a party and party bill of costs dated 30th March 2022 for Kshs. 673, 500 for taxation.

3. According to the petitioner, the 2nd respondent in the judgment dated 28th November 2019 found the 1st respondent to be in breach of order of directions No 2 in the directions issued on 12th June 2013. That finding has not been set aside and the 1st respondent continues to disobey that order in violation of the petitioner’s right to enjoyment of property which undermines the rule of law and unjustly enriches the 1st respondent to the petitioner’s detriment on the amount of Kshs. 3,405,110 claimed in prayer v together with interest thereon at the rate of Kshs. 2,000 per week from 1st October 2014 until payment in full.

4. The petitioner argued that the amount the 1st respondent owes exceeds the amount claimed as costs in the party and party bill of costs. Unless the orders sought in the application are granted, the 1st respondent will continue with contravention of the Constitution through purported execution of the judgment and decree.

5. According to the petitioner, the 2nd respondent dismissed the 1st respondent’s suit but stated at para 18 that the 1st respondent was in breach of the directions on payment of rent through his advocate which he had not done.

6. The petitioner relied on Maingi Mutisya Nzioka v Mbuki Kisavi [2014] eKLR that a perpetrator of fraud should not be allowed to keep the fruits of his fraud, and L U International Ltd v Kenya National Trading Corporation & another [1995] eKLR that a wrong doer must not be allowed to benefit however remotely for his wrong doing.

7. The 1st respondent opposed the application through grounds of opposition dated 5th December 2022; a replying affidavit and written submissions. The 1st respondent argued that the application is incompetent, misconceived, and is meant to delay the cause of justice; execution and avoid satisfying the decree.

8. The 1st respondent relied on First American Bank of Kenya v Shah & others [2002] EACA for the position that a court cannot interfere with the taxing officer’s decision on taxation. Further reliance was placed on the decision in University of Nairobi & another v Moses [2022] KECA 45(KLR), citing Joreth Ltd v Kigano & Associates Advocates [2002] eKLR that a taxing officer exercises discretion when taxing a bill of costs and his discretion will not be interfered with unless it was wrongly exercised.

9. I have considered the application, the response and arguments by parties. The petitioner seeks a declaration that the costs awarded to the 1st respondent have been paid on the basis that the 1st respondent also owes the petitioner some money as stated by the 2nd respondent in its judgment delivered on 28th November 2019. In essence, the petitioner wants the court to block taxation of the 1st respondent’s bill of costs pending before the taxing officer.

10. The judgment of this court dismissed the petition with costs. The 1st respondent has a right to have his bill of costs taxed and certified by the taxing officer. Until that is done, no one can say how much is due to the 1st respondent as costs.

11. Second, if the petitioner is owed money by the 1st respondent as it is argued, then the petitioner has a right to pursue its rights under the judgment delivered by the 2nd respondent. It is up to the petitioner to get the decree and execute, it if indeed there is a finding of the court to that effect.

12. This court having pronounced itself on the issues that parties placed before it, it cannot assume any other jurisdiction and determine matters that are outside its mandate such as finding that any decree or money has been paid through a different matter that was not before it. If the petitioner is owed money by the 1st respondent, it can only legally pursue that money in the case where the order was made and execute that decree or order, but not in this court and this file.

13. In the circumstances, I find no merit in the application. It is declined and dismissed. I make no order on costs.

DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF MARCH 2025E C MWITAJUDGE