[2014] KEHC 8064 (KLR)
The court determined that the dispute between the parties is fundamentally one of arithmetic, arising from differing interpretations of the effect of the court's adjustment to the interest effective date. Given the conflicting positions—one party claiming an outstanding balance and the other asserting...
Source-derived case information.
- Citation
- [2014] KEHC 8064 (KLR)
- Parties
- Appellant: Kenya Bus Services Limited; Respondent: Cooperative Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 333 of 2006
- Procedural Posture
- Civil Appeal / Preliminary Ruling on Enforcement Application
- Outcome
- Application for enforcement deferred pending taking of accounts.
- Judges
- DW Mbuteti
- Legal Topics
- Enforcement of Judgments, Consent Orders, Interest Calculation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Bus Services Limited
Appellant
Cooperative Bank of Kenya Ltd
Respondent
Procedural Posture
Civil Appeal / Preliminary Ruling on Enforcement Application
Legal Issues
- 1 Whether the appellant has fully paid the decretal sum and interest as adjusted by the court.
- 2 Whether the respondent is entitled to further payment or is required to refund any amount received under the consent order.
- 3 How the adjustment of the effective date for interest affects the parties' financial obligations.
Ratio Decidendi
The court determined that the dispute between the parties is fundamentally one of arithmetic, arising from differing interpretations of the effect of the court's adjustment to the interest effective date. Given the conflicting positions—one party claiming an outstanding balance and the other asserting overpayment—the court found it necessary to direct the Deputy Registrar to take accounts. This process will establish which party, if any, owes the other and the precise amount. The court deferred enforcement of the insurer's undertaking and any further orders until the accounts are taken and the true state of indebtedness is ascertained. Costs were ordered to abide the final determination...
Court Disposition
Application for enforcement deferred pending taking of accounts.
Orders
- Deputy Registrar to take accounts to determine which party owes the other and the amount, if any.
- Parties to appear before the Deputy Registrar on a date to be fixed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 333 OF 2006
KENYA BUS SERVICES LIMITED………………………….…APPELLANT
V E R S U S
COOPERATIVE BANK OF KENYA LTD………….....………RESPONDENT
PRELIMINARY RULING
1. On2nd November, 2006 the parties to this appeal recorded a consent which included the following order:
“(c) The Appellant’s insurer, M/s Madison Insurance Company Limited undertakes to pay the balance of the decretal sum in the event the appeal is unsuccessful and the Respondent undertakes to refund the money received if the appeal is successful.”
2. The appeal was eventually dismissed except the issue of interest which was adjusted by the Court to be effective from 20th May, 2005.
3. The Respondent in the appeal has now applied by notice of motion dated 11th December, 2012for orders of enforcement of the undertaking by the Appellant’s insurer, Madison Insurance Company Limited. The application is opposed by the Appellant by replying affidavit sworn by its advocate and filed in Court on 10th April, 2013.
4. The parties elected to canvass the application by way of written submissions. The Respondent’s submissions were filed on 30th April, 2014 while those of the Appellant were filed on 2nd May, 2014. I have read those submissions. It is clear that the dispute disclosed is one of arithmetic. It is the Appellant’s contention that because of the adjustment made by the Court in its judgment herein regarding the effective date for the interest, it has not only fully paid all due interest but is in fact owed KShs 50,000/00-odd by the Respondent. The Respondent on the other hand contends that the Appellant owes it the sum KShs 700,000/00-odd upon the decree.
5. To enable a proper resolution of the application at hand, let the Deputy Registrar of the Court first take accounts in order to determine which party owes the other, if at all, and if, so how much. For this purpose the parties shall appear before the Deputy Registrar on a date to be given at the delivery of this ruling. Costs will abide final determination of the application. Those will be the orders of the Court.
DATED AND SIGNED AT NAIROBI THIS 10th DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 11TH DAY OF JULY 2014