[2015] KEHC 1478 (KLR)
The court found that the 2nd Defendant had paid a total sum exceeding the amount specified in the warrants of arrest and decree dated 30th July 2014. The Plaintiff, having accepted the basis of the warrants and communicated that payment of Kshs. 1,896,647.15 would settle the decree, was estopped from demanding any...
Source-derived case information.
- Citation
- [2015] KEHC 1478 (KLR)
- Parties
- Plaintiff: John Bosco Maundu; Defendant: William Wambua Kiwia; Defendant: Charles Mutuku; Defendant: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1165 of 2003
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Application Regarding Execution and Settlement of Decree
- Outcome
- Application allowed in terms of prayers 3, 4, and 5; each party to bear its own costs.
- Judges
- JK Sergon
- Legal Topics
- Execution of Decrees, Settlement of Judgments, Unlawful Arrest, Malicious Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Bosco Maundu
Plaintiff
William Wambua Kiwia
Defendant
Charles Mutuku
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Application Regarding Execution and Settlement of Decree
Legal Issues
- 1 Whether the 2nd Defendant has fully settled the decretal sum as per the warrants of arrest dated 30th July 2014.
- 2 Whether the Plaintiff is entitled to claim further sums beyond those stated in the warrants.
- 3 Whether the 2nd Defendant is entitled to a refund of any excess amount paid.
Ratio Decidendi
The court found that the 2nd Defendant had paid a total sum exceeding the amount specified in the warrants of arrest and decree dated 30th July 2014. The Plaintiff, having accepted the basis of the warrants and communicated that payment of Kshs. 1,896,647.15 would settle the decree, was estopped from demanding any further sums. The court held that the 2nd Defendant was entitled to an amendment of the warrants and decree to reflect the payments made, and that the Plaintiff had no justification to seek additional amounts. The application was allowed in terms of the prayers seeking amendment of the warrants, declaration of the sum due, and lifting of the warrants upon payment of the balance....
Court Disposition
Application allowed in terms of prayers 3, 4, and 5; each party to bear its own costs.
Orders
- The warrants and decree issued on 30th July 2014 to be amended by reducing the sum stated by Kshs. 700,000, being monies paid by the 2nd Defendant in settlement of the decree.
- The sum due is decreed to be Kshs. 1,196,647.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 1165 OF 2003
JOHN BOSCO MAUNDU..................PLAINTIFF/RESPONDENT
VERSUS
WILLIAM WAMBUA KIWIA.............................1ST DEFENDANT
CHARLES MUTUKU ........................................2ND DEFENDANT
HON. ATTORNEY GENERAL...........................3RD DEFENDANT
RULING
1. Charles Mutuku Kiwia, the 2nd Defendant herein, took out the motion dated 8/8/2014 in which he sought for the following orders:
THAT for reasons to be recorded, the court be pleased to certify this application as urgent and grant leave to the 2nd Defendant’s counsel to be heard during the current court vacation.
THAT the warrants of arrest issued on the 30th of July 2014 be suspended until the hearing and determination of this application
THAT the warrants and decree issued on the 30th of July 2014 be amended by reducing the sum stated in the said warrants by ksh.700,000/= being monies paid by the 2nd Defendant judgment Debtor in settlement of this decree.
THAT consequent to the grant of prayer 3 supra the honourable court do decree that the sum due is kshs.1,196,647/-
THAT consequent to the grant of prayers 3 and 4 supra the warrants herein be lifted after payment by the 2nd Defendant/applicant of the balance of the sum due of kshs.1,196,647/-
2. The 2nd Defendant filed an affidavit he swore in support of the motion. When served, John Bosco Ngeta Maundu, the Plaintiff herein filed a replying affidavit he swore to oppose the application. When the application came up for interpartes hearing, learned counsels recorded a consent order to have the same disposed of by written submissions.
3. Before considering the substance of the motion, let me set out in brief the background of this dispute. This suit was originally filed as H.C.C.C. no. 24 of 1997 in which the Plaintiff sought for general damages for unlawful arrest, detention, malicious prosecution and imprisonment. The primary suit went missing prompting the court to issue orders for the reconstruction of a new file giving rise to Nairobi H.C.C.C no. 1165 of 2003. The case was heard in 2003 and the Plaintiff was awarded judgement in the sum of kshs,800,000/= plus costs and interest. The file has a long history of the attempts made by the Plaintiff to execute the decree. The record shows that numerous applications were made by the Defendant putting hurdles on the Plaintiff’s attempt to execute the decree.
4. Having set out the background of this motion let me now determine the merits or otherwise of the motion. Prima facie, the 2nd Defendant took out the aforesaid motion when the Plaintiff purported to execute a warrant of arrest premised on a decree for ksh.1,896,645/15. On 11. 08. 2014, the 2nd Defendant was prompted to deposit kshs.700,000/= in court as a condition for stay. The 2nd Defendant in a bid to settle the matter contemporaneously deposited two cheques amounting to kshs.1,196,607 making the total payments made to be kshs.1,896,607/=
5. It is the submission of the 2nd Defendant that the above figure represented full and final settlement of the warrants issued at the behest of the Plaintiff by this court on 30. 7.2014. It is admitted by the 2nd Defendant that prior to the above mentioned payments, the Plaintiff had made payments in the sum of kshs.700,000/= thus surpassing the amount stated in the warrants of attachment/arrest of 30th July 2014. Accordingly, the 2nd Defendant is of the view that there is no sum due to the Plaintiff and that the 2nd Defendant is entitled to a refund of kshs.700,000/= deposited in court. The 2nd Defendant also pointed out that the computation of the payments made were based on court documents, payments made by the 2nd Defendant and the admissions made by the Plaintiff.
6. It is clear to me that the 2nd Defendant has explained and proved that sums in excess of those stated in the warrants were paid. With respect, I agree with the 2nd Defendant’s assertion that the Plaintiff is estopped from claiming further monies other than those stated in the warrants dated 30th July 2014. The 2nd Defendant was led to believe that based on the warrants and the communication that remitting kshs.1,896,647/15 would settle the decree, the Plaintiff cannot go behind and state otherwise. The Plaintiff has no justification to ask for more money that exceeds what was stated in the warrant.
7. In the final analysis I am convinced that the motion dated 8th August 2014 is well founded. It is allowed in terms of prayers 3, 4 and 5.
8. Looking at the history of this dispute, a fair order on costs is for each party to meet its own costs. It is so ordered.
Dated and delivered in open court this 23rd day of October, 2015.
J. K. SERGON
JUDGE
In the presence of:
………………………………………. for the Plaintiff
……………………………………….for the Defendant