[2016] KEHC 8669 (KLR)
The court declined to issue a second order compelling the 1st Defendant to provide accounts because an earlier order to that effect had already been made by Gikonyo J. on 29th July 2015. The court found that the plaintiff's application was therefore unnecessary at this stage. The court further held that if the 1st...
Source-derived case information.
- Citation
- [2016] KEHC 8669 (KLR)
- Parties
- Plaintiff: Jane Wambui Macharia; Defendant: WAIS Capital Limited; Defendant: Joseph Kahoro Mundia t/a Upstate Kenya Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 44 of 2015
- Procedural Posture
- Civil Suit / Ruling on Application for Accounts
- Outcome
- Application declined; no second order for accounts issued; costs in the cause.
- Legal Topics
- Accounts of Debt, Discovery of Documents, Loan Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wambui Macharia
Plaintiff
WAIS Capital Limited
Defendant
Joseph Kahoro Mundia t/a Upstate Kenya Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Accounts
Legal Issues
- 1 Whether the court should issue a second order compelling the 1st Defendant to provide accounts to the plaintiff.
- 2 Whether the plaintiff is entitled to costs for the application seeking accounts.
Ratio Decidendi
The court declined to issue a second order compelling the 1st Defendant to provide accounts because an earlier order to that effect had already been made by Gikonyo J. on 29th July 2015. The court found that the plaintiff's application was therefore unnecessary at this stage. The court further held that if the 1st Defendant continued to defy the existing court order, the plaintiff could seek consequential orders, but it was not the court's role to advise on the next steps. Costs of the application were ordered to be in the cause, as the 1st Defendant did not participate in the application and it would be unjust to award costs to a party in breach of a court order.
Court Disposition
Application declined; no second order for accounts issued; costs in the cause.
Orders
- The application dated 15th October 2015 is declined.
- No second order for the taking of accounts shall issue.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 44 OF 2015
JANE WAMBUI MACHARIA...................................................PLAINTIFF
- VERSUS -
WAIS CAPITAL LIMITED..........................................1ST DEFENDANT
JOSEPH KAHORO MUNDIA
T/A UPSTATE KENYA AUCTIONEERS………...……….2ND DEFENDANT
RULING
1. The application before me was brought by the plaintiff pursuant to the provisions of Order 20 of the Civil Procedure Rules. It is an application seeking orders to compel the 1st Defendant, WAIS CAPITAL LIMITED, to provide accounts.
2. It is the plaintiff’s contention that she was ready and willing to deposit the whole amount which may be due and payable to the 1st defendant. However, the defendant is alleged to have withheld from the plaintiff, the particulars of the debt.
3. As the 1st defendant was duly served with the application but it failed to file any response to it, I find that the plaintiff’s assertions are uncontroverted.
4. Pursuant to Order 20 Rule 1 of the Civil Procedure Rules, the court may make an order for the taking of proper accounts with all necessary inquiries and directions.
5. Obviously, if the defendant was laying claim against the plaintiff, for the repayment of some money which it had disbursed to the plaintiff, it is only fair and just that the defendant should provide the plaintiff with the statement of accounts to enable the plaintiff verify the legitimacy of the claim.
6. On 29th July 2015 Gikonyo J. delivered a Ruling on the plaintiff’s application for an injunction. Although the learned Judge declined the application for a permanent injunction at that stage, he went on to state as follows;
“However, given the issues at hand, a request for running accounts on the loan is not unreasonable at this stage. Such is an act or order which can comfortably be sought and issued even at pre-trial conference as part of discovery. Also, there will be no prejudice that will be suffered by the 1st Defendant who claims the loan was disbursed and the plaintiff defaulted on repayment. Accordingly, I order the 1st Defendant to provide to the plaintiff a running statement of account in respect of the loan herein within 45 days of today”.
7. In effect, the court had already ordered the 1st Defendant to provide the plaintiff with accounts. There is no need for the court to issue a second order to compel the 1st Defendant to provide accounts.
8. If the 1st Defendant continues to defy court orders, the plaintiff may consider seeking consequential orders. But it is not the court’s function to offer advice to any of the parties appearing before it. Therefore, I say no more, about the possible appropriate steps which could now be taken up by the plaintiff.
9. Meanwhile, I decline to issue a second order for the taking of accounts. The costs of the application dated 15th October 2015 shall be in the cause. I so order because although the application was unsuccessful, the 1st Defendant never took any part in it. Secondly, if the said 1st Defendant had failed to provide accounts to the plaintiff as it had been ordered to do, I hold the view that it would be wrong to award him costs.
DATED, SIGNED and DELIVERED at NAIROBI this18th dayof August2016.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of:
……………………………………………for the Plaintiff
……………………………………for the 1st Defendant
……………………………………for the 2nd Defendant
Collins Odhiambo – Court clerk.