[2022] KEHC 11707 (KLR)

Gecaga (Suing on her own behalf and as a next Friend of Dr. Bethuel Mareka Gecaga) v Gateway Insurance Co. Ltd & 2 others (Civil Suit 86 of 2018) [2022] KEHC 11707 (KLR) (Civ) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11707 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 86 of 2018

A Mabeya, J

May 13, 2022

Between

Margaret Gacigi Gecaga (Suing on her own behalf and as a next Friend of Dr. Bethuel Mareka Gecaga)

Applicant

and

Gateway Insurance Co. Ltd

1st Defendant

Udi Mareka Gecaga

2nd Defendant

Quinvest Ltd

3rd Defendant

Ruling

1. Vide a Motion on Notice dated 9/2/2022, the applicant sought, inter-alia, an order of stay of the further execution of the party and party costs of Ksh.655,670/- awarded on 25/11/2021. She also sought an order to restrain the 2nd and 3rd respondents from selling or disposing all the goods attached on 7/2/2022 in execution of the aforementioned party and party costs pending the determination of Nairobi High Court Succession Cause No. 937 of 2017, In the matter of the Estate of the Late Dr. Bethuel Gecaga.

2. The Motion was brought under orders 22 rules 1 – 3, 40 Rule 1A and B of the Civil Procedure Rulesand sections 1a, 1b & 3a (sic) and 63 of the Civil Procedure Act. It’s grounds were that pursuant to the party and party bill of costs dated 1/10/2020, the taxing master taxed the same to Ksh.655,670/=. In pursuance thereof, M/s Principal Auctioneers attached her personal effects and household goods including her vehicles.

3. The applicant pleaded that due to the attachment she was left in a deplorable state with no way to function in her home and no vehicle to transport her to the hospital if need be. She averred that she is a beneficiary of her late husband’s estate in Nairobi High Court Succession Cause No. 937 of 2017, In the matter of the Estate of the Late Dr. Bethuel Gecaga (“the succession cause”) and that she would pay the amount owed in the party and party costs once the same is concluded as she has no other assets to pay the costs.

4. The 2nd and 3rd defendants jointly opposed the application vide grounds of opposition dated 17/2/2022 and an affidavit sworn on 18/2/2022.

5. In the grounds of opposition, they contended that there is no jurisdiction to grant the order as a final decision had been given and an appeal lodged in the Court of Appeal in Civil Appeal 327 of 2018 Margaret Gacigi Gecaga vs Gateway Insurance Company Limited & 2others. That the application was an abuse of the court process as the applicant’s financial situation had already been adjudicated upon by the Family Court in the succession cause. Further, that she had the means to settle the taxed costs.

6. The respondents contended that the payment of costs should not be pegged on the determination of issues in the succession cause. That the applicant had various assets as revealed in an arbitration dispute between the parties and the said succession cause. That she holds and controls a bank account at Absa bank which receives dividends from shares held at Nation Media Group.

7. They further contended that in the succession cause, she had failed to rebut the assertion that she had the means to take care of herself financially. That the order for restitution was not justified as the costs had been outstanding for too long and the applicant did not wish to settle the same.

8. This is an application seeking a stay of execution of a taxed party and party costs amounting to Ksh.655,670/-. The respondents have attached the assets of the applicant with a view to recovering the same.

9. The applicant’s sole reason for seeking to stay the execution is that she has no means to satisfy the taxed costs and that if the attached items are sold she will be left with nothing.

10. The respondents rebutted this by asserting that she has assets capable of satisfying the decree.

11. The Court has looked at the ruling delivered by Mutuku J. in the succession cause on 16/12/2021. The same was produced by the respondents in their affidavit of 18/2/2022. At page 20 thereof, the court noted that the applicant had not placed any evidence in court to challenge the allegation that she had the means to take care of herself pending the determination of that cause. Further, that she had not disputed the allegation that she had total control over the account held at the Bank of Scotland and that she receives dividends from Nation Media Group Ltd.

12. Further, at pages 2 - 3 of the annexures to the aforementioned affidavit, there was a schedule of assets that the applicant had allegedly produced before an arbitral tribunal in another dispute between the parties.

13. Although the applicant claimed not to have any means to satisfy the taxed costs, the documents produced by the respondents indicate otherwise. She neither denied nor challenged the assertions made by the respondents and the documents produced to show her ability to settle the costs.

14. Further, the applicant’s position, as was before the Family Court, was that she simply cannot afford to pay the costs. She did not deem it fit to either produce evidence to support her assertions or offer any evidence in rebuttal to the respondents compelling evidence to the contrary. For example, she should have produced copies of the account which is said she holds with Absa or evidence to counter the schedule of assets produced.

15. If she did not have any assets capable of attachment, the auctioneers would not have attached some of them in an attempt to sell them in order to recover the amount owed.

16. In view of the foregoing, the court finds no compelling reason to stay the execution of the taxed party and party costs. There is no justifiable reason to interfere with the execution process.

17. Accordingly, the application dated 9/2/2022 is without merit and is dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF MAY, 2022. A. MABEYA, FCIArbJUDGE