[2017] KEHC 2166 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCA NO. 34 OF 2015

DIRECTLINE ASSURANCE COMPANY LIMITED ................APPELLANT

- VERSUS -

ANDERSON MUINDI & PETER MBAE SEBASTIAN

(Suing as the legal Representatives of

JOY GATUGI (DECEASED) ...................................................RESPONDENTS

CONSOLIDATED WITH

CIVIL APPEAL NO. 15 OF 2016

CIVIL APPEAL NO. 16 OF 2016

CIVIL APPEAL NO. 17 OF 2016

CIVIL APPEAL NO. 18 OF 2016

CIVIL APPEAL NO. 19 OF 2016

CIVIL APPEAL NO. 20 OF 2016

CIVIL APPEAL NO. 21 OF 2016

(Being an appeal from the ruling and orders of Hon. A.G . Kibiru Senior Principal Magistrate at Chuka Law Courts delivered on 28th October, 2015)

R U L I N G

1. Before this court is an amended Notice of Motion dated 16th May 2017 brought by Directline Assurance Company Ltd, the applicant against several respondents in Civil Appeals numbers 15/2016, 16/2016, 17/2016, 18/2016, 19/2016, 20/2016, 21/2016 all consolidated with this appeal No. 34/2015. The prayers Nos. 1, 2, 3, 4 and 5 of the said application were compromised through a written consent adopted in this court on 7th June, 2017. The consent left out the following prayer for determination which is the subject of this ruling. The prayer seeks the following relief under prayer 4A.

"That the proclamation of the appellant's assets effected on 2nd May, 2017 be declared illegal, null and void and consequently the proclamation be lifted with no order as to costs.”

The ground upon which the applicant has sought this relief is that the respondent failed to follow the Civil Procedure Rules and acted maliciously to bring the appellant into odium.

2. This application was supported by the affidavit of Pauline Wairimu sworn on 5th May, 2017 where she has deposed that she was well versed with the facts of the matter herein being the General Manager in the Claims Department of the applicant. The deponent swearing the affidavit on behalf of the applicant has further deposed that they brought an application for stay of execution among other prayers in an application dated 20th April, 2017 which was scheduled to be heard in inter parties on 12th May 2017. The applicant has further deposed that costs in the consolidated appeals had been taxed at Kshs.783,425/- on 23rd March, 2017 and that they had vide a letter dated 12th April 2017 requested the respondents' counsel to confirm the figures taxed. The applicant contend that the respondent did not respond to the letter but proclaimed their goods on 3rd May, 2017. It is contended that the proclamation was illegal on account that the respondent did not send the draft Certificate of Taxation and/or decree for their approval contrary to the rules of procedure. The respondents have also been faulted for acting in haste and in bad faith. In their view the proclamation done against them was illegal.

3. The respondents have opposed the application through a Replying Affidavit by Don. Z Ogweno Advocate for the respondents sworn on 20th May, 2017. Mr. Ogweno has deposed that he forwarded draft decree to the applicants through a letter dated 16th February, 2017 but that the same elicited no response. The respondents have further deposed that the applicants were dully notified of the taxed costs vide a letter dated 24th March 2017. The respondents have contended through counsel that they had no malice in the actions they took pointing out they had even earlier on 25th January 2017 informed them about the judgment delivered in their absence on 13th December 2016.

4. The respondents have contended that there is no provisions requiring them to send the certificate of costs for approval arguing that the decision of the taxing master on the amount total taxed was made in the presence of the applicants' counsel who reportedly sought for 30 days stay of execution which was to expire sometime on 22nd April 2017.

5. The respondents have faulted the applicants for writing a letter dated 12th April 2017 inquiring about the taxed costs when they already knew the amounts taxed and that they had no basis to delay payments.

6. The respondents have contended that the amount deposited in court did not include the costs of the appeals and that the deposited amount were decretal amounts decreed at the lower court. They have therefore justified the proclamation arguing that they were executing for costs and not the decrettal amounts.

7. This court has considered both the application and the response made. The only issue herein is basically whether or not the proclamation made by the respondents on 2nd May 2017 vide CLEAR REAL TRADERS was valid and lawful. The applicants have not disputed that they were condemned to pay costs and were required and obligated to pay the costs as taxed in court on 23rd March 2017. The applicants have only disputed the legality of the proclamation contending that the certificate of costs should have first been sent to them for approval. The provisions of Order 22 Rule 7 however requires only draft decrees reflecting a judgment passed in the High Court to be send by any party to the other for approval. The provision does not include certificate of costs. This court agrees with the respondents that they had no obligation to draft a certificate of costs send it for approval. In any event, the decision on the taxed amounts at was made in the presence of the applicants' counsel. They orally applied for 30 days stay in court which was granted. The stay granted expired on 22nd April 2017.

8. It is clear from the record that the applicant moved this court vide a Notice of Motion dated 20th April, 2017 in contemplation of the expiry of that stay of execution that is why the Motion was brought under certificate of urgency. The applicant should have however placed their application before a duty Judge in this region in view of the fact that this court was on leave at that time (20th April, 2017). Nonetheless the application dated 20th April, 2017 was placed before on 3rd May, 2017 when I certified the application urgent and directed the same to be fixed for hearing on a priority basis in the registry. The applicants' counsel went to the registry of this court on 5th May, 2017 and fixed the said Notice of Motion for hearing on 12th May 2017. On 12th May 2017, the applicants' counsel and respondents counsel came to court and stated that they had struck a compromise agreed. I directed them to file a written consent which they did and agreed on all items save for auctioneers charges.

9. The applicants have faulted the respondents' exhibits annexed to the Replying Affidavit sworn on 20th May, 2017 which I find valid. The respondents counsel really ought to have complied with the law and clearly marked his exhibits if he intended to rely on them. However I find that the applicants did not challenge the contents of the affidavit. They should have filed a Replying Affidavit if what was deposed in paragraph 1 to 10 of the affidavit was contested. Failure to contest the facts presented notwithstanding the anomalies in the annextures means that the facts presented by the respondents are uncontested. This means that the applicant was fully aware of all the steps taken by the respondents to execute for their costs which by the way was not part of what had been deposited in court. What had been deposited in court was the decretal amount as per the judgments delivered in the subordinate court. The applicant being the judgment debtor should have notified the decree holder that it wished to have taxed costs to be offset by the amount that was to be released to them as per the judgment of this court delivered on 13th December, 2016. The applicant was also silent when they entered into a consent with the respondent when they appeared before me on12th May, 2017 on the question of taxed costs and auctioneers fees. This is a clear indication that the applicant knew about taxed costs plus auctioneers fees and only wanted to avoid the reality.

10. In the end this court finds no merit in the application dated 16th May 2017. The same is misconceived. There is no provision requiring a decree holder to send a certificate of costs to the judgment debtor before carrying out execution. The applicant clearly knew the taxed amounts and when the proclamation was effected there was no stay despite the applicant having filed an application for stay of execution. It did not obtain stay of execution to prevent the respondent from executing for the taxed costs. This court finds that the execution process was valid and lawful. For this reason the Notice of Motion dated 16th May 2017 is dismissed with costs.

Dated and delivered at Chuka this 7th day of November, 2017.

R. K. LIMO

JUDGE

7/11/2017

Ruling dated, signed and delivered in the open court in the presence of Rwinge Advocate holding brief for Kisinga Advocate.

R.K. LIMO

JUDGE

7/11/2017