[2017] KEHC 708 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 521 OF 2011

1. KAMAU JAMES GITUTHO NJENDUt/a GITUTHO ASSOCIATES

2. HARRY NJOROGE GAKUYA t/a GAKUYA & ASSOCIATES

3. MAXCAD CONSULTING ENGINEERS LTD

4. PRIMECONSULT ENGINEERS LIMITED......................PLAINTIFFS

VERSUS

1. MULTIPLE ICD (K) LIMITED

2. MULTIPLE HAULIERS (E.A) LIMITED.......................DEFENDANTS

R U L I N G

1. On the 4/8/2017 this Court entered Judgment for the plaintiffagainst the defendants jointly and severally in the sum of Kenya Shillings 219,170,713/= plus costs and interest thereon at 24% per annum from the 1/5/2010 till payment in full.

2. That Judgment aggrieved the defendant who has since, according toMr. Sitonik Advocate, filed Malindi Court of Appeal Civil Appeal No. 77 of 2017.

3. By a Notice of Motion dated 30/8/2017 and filed in court on01/09/2017, the judgment debtor has now moved to court for orders of stay expressed as follows:-

i. That this Application be certified urgent and be heard immediately and during the High Court vacation;

ii. That there be a temporary stay of execution of the judgment and decree issued on 4/08/2017 pending the hearing and determination of the substantive prayer for stay of execution pending the hearing and determination of proposed appeal, and

iii. There be a stay of execution of Judgement/Decree issued on 4/08/2017 pending the hearing and determination of the proposed appeal.

4. The application was grounded on the grounds that; a Notice ofAppeal had been filed and served and certified copies of the proceedings and judgment bespoken, the judgment debtor has a strong appeal with every chance of success, that the appeal would be rendered nugatory would have been coerced to pay colossal sums of money evidently not due and would thus be driven into bankruptcy hence the damage thereby resulting will not be remedied even if the appeal succeeds and the sums are refunded; execution may be levied within 30 days even before costs are fixed and without leave to execute before execution and that the Respondent would be unable to effect a refund in the doubtless event of the appeal succeeding.

5. The same facts are reiterated in the affidavit RAJINDER S.BARYAN sworn and filed in support of the application with an acknowledgement the decree holder is indeed owed the sum of Kshs.83,978,196. 39 which the judgment has always been willing and ready to pay out.

6. The Application was opposed by the decree holder who filed aReplying Affidavit sworn by KAMAU JAMES GITUTHO NJENDA, the 1st plaintiff. That affidavit fault the application for being premature misconceived, mischievous and an abuse of the court process; that the application is grounded upon falsehood as much as it is premature since no costs had been taxed and decree drawn; that the thresholds for grant of stay of execution had not been met; that no substantial loss was disclosed as no authenticated financial statements had been exhibited and lastly that no security for the due performance of the possible decree has been offered.

7. Parties attended court to canvass the application and agreed tonarrow down the dispute by agreeing that stay be granted but on terms that:-

a. The admitted sum be paid.

b. The disputed sum be secured into an interest earning account in the joint names of the advocates for the parties.

8. The only dispute between the parties, and what the court is calledupon to determine for the parties, is the time within which to pay the admitted sum and to effect the deposit. However Ms. Mango in her submissions made further concession that the proposal to effect the deposit by the 30/3/2018 is acceptable to her client. Let the disputed sum be deposited into an interest bearing account in the joint names of the advocates for the parties not later than 30. 3.2018. Effectively therefore, the only dispute is, when the sum admitted and adjudged as due and payable should be paid.

9. Under article 40(1)a as read with Article 260, a monetary decree, likethe one in this file, is indeed a property to which the owner is entitled to enjoyment and shielded from arbitrary deprivation beyond the perimeters set under Article 40(3).

10. All along, the judgment debtors have taken the unequivocal standthat they owe the decree-holder the sum of Kshs.83,978,196. 39 and, according to paragraph 5(b) of Mr. Rajinder S. Baryan’s affidavit, in support of the application for stay, “was at all material times ready and willing to pay”.

11. To the court, no justice is ever served by inputting a dispute wherethere exist a concurrence. To do that would be escalate disputes rather than resolving them. That should never be expected of a Court of Law.

12. I hold that there is no dispute on the entitlement of the decreeholder to the sum of Kshs.83,978,196. 39 together with adjudged interest and that this is the sum the decree-holder should not be kept away from.

13. This court in Mary Wairimu Gakere & Another vs DeltaConnections Ltd & 2 Others [2016]eKLR while quoting TRUST BANK (K) LTD VS SHREJI TRANSPORTS [1990] Ltd, held that it would be an antithesis to the norms and dictates of the notions of justice to keep away a plaintiff from his dues where there is an admission. In Freight Forwarders Kenya Ltd vs Elsek & Elsek (K) Ltd [2017] eKLRthe court said:-

“Essentially, the judgment debtor took the stand that atleast the sum of Kshs.1,601,190 was due and payable upon the decree. With that confession, that is the sum I do not think the decree holder need to be kept away from. It need be paid fortwith and in any event within 30 days today”.

14. In this matter I take the stand that to delay the payment of the sumthe judgment debtor has acknowledged to be due and payable since 2013, would be to arbitrarily withhold a property due to the decree-holder from him. Even if the judgment debtor would be for own reason seek to pursue such a route, the court as an agency of the state is forbidden from adopting such a tendency and surely cannot assist a litigant to pursue the same. For that reason, the admitted sum of Kshs.83,978,196. 39 is justly due and has been justly due from the judgment-debtor to the plaintiff and ought to be paid and must be paid forthwith.

15. I direct that each party bears own costs because both have assistedthe court in narrowing down the issues for determination.

16. It is so ordered.

Dated and delivered at Mombasa this 10th day of November 2017.

P.J.O. OTIENO

JUDGE

10. 11. 2017

Before Justice P.J.O. Otieno J

Court Asst. – Bati

Mr. Sitonik for the defendant/Judgement Debtor

Mr. Olendi for Mango for Plaintiff/Decree Holder

Ruling delivered.

Justice P.J.O. Otieno J