[2018] KEHC 3466 (KLR)
The court determined that, to balance the interests of both parties and avoid prejudicing either side before the pending applications are heard, the disputed sum of Kshs. 80,700,000 should be deposited into an escrow account in the joint names of the parties' advocates. The plaintiff is required to provide an...
Source-derived case information.
- Citation
- [2018] KEHC 3466 (KLR)
- Parties
- Plaintiff: Masai Investment Limited; Defendant: Kenya Ports Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 71 of 2018
- Procedural Posture
- Civil Suit / Interlocutory Ruling on Enforcement and Variation of Interim Orders
- Outcome
- Interim orders varied; escrow deposit and undertaking ordered; directions for hearing given.
- Judges
- CA Otieno
- Legal Topics
- Interim Orders, Escrow Deposit, Undertaking as to Damages, Contempt of Court, Variation of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Masai Investment Limited
Plaintiff
Kenya Ports Authority
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling on Enforcement and Variation of Interim Orders
Legal Issues
- 1 Whether the interim orders issued on 20/9/2018 should be enforced or varied pending determination of the applications.
- 2 Whether the sum in dispute should be paid directly to the plaintiff or deposited in escrow.
- 3 Whether the plaintiff should provide an undertaking as to damages resulting from the interim orders.
Ratio Decidendi
The court determined that, to balance the interests of both parties and avoid prejudicing either side before the pending applications are heard, the disputed sum of Kshs. 80,700,000 should be deposited into an escrow account in the joint names of the parties' advocates. The plaintiff is required to provide an undertaking as to damages within seven days. If the plaintiff fails to provide the undertaking, the defendant is relieved of the obligation to deposit the funds and the interim orders are stayed. If the defendant fails to comply, the deposit order is discharged. This approach preserves the status quo and ensures that neither party is unfairly advantaged or disadvantaged pending the...
Court Disposition
Interim orders varied; escrow deposit and undertaking ordered; directions for hearing given.
Orders
- The sum of Kshs. 80,700,000 to be deposited into an escrow account in the joint names of the advocates within 14 days.
- The plaintiff to file an undertaking as to damages within 7 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 71 OF 2018
MASAI INVESTMENT LIMITED ........PLAINTIFF
VERSUS
KENYA PORTS AUTHORITY...........DEFENDANT
R U L I N G
1. I do wholy appreciate that this matter ought to be given direction by trial court which is out of station on official duties. However the need to do justice to the litigants must be appreciated and upheld all the time.
2. Having read the orders sought to be discharged by the defendant and sought to be enforced by contempt application by the plaintiff, together with the proceedings giving rise to the said orders and while taking cognizance of the submissions offered before me this morning, I call in the overriding objective of the court to administer justice in an even and proportionate manner by avoiding hardship to litigants.
3. During the submissions, Mr. Khagram proposed that instead of payment of the sum being made to the plaintiff, directly which shall have the effect of concluding the dispute before hearing, the money be kept into an escrow account in the joint names of the advocates for the parties with a rider that the plaintiff do provide an undertaking as to damages that may result from the orders subject of the two applications.
4. Mr. Shimaka readily accepted to provide the undertaking but strenuously opposed the tinker with the court orders after the time given to the defendant lapsed without compliance. He contended that it would encourage disobedience of court orders.
5. I have considered all I consider to best serve the interests of the disputants and I am prepared to tinker with the orders by Chepkwony J, given on the 20/9/2018 without compromising the two pending application. I seek to do so by settling on a middle ground that will ensure that none of the parties is prejudice pending the determination of the two application.
6. In that exercise, the order that commends itself to court is as follows:-
i. The sum sued upon, being Kshs.80,700,000. 00, be deposited into an escrow account in the joint names of the advocates for the parties within 14 days from today.
ii. The plaintiff shall, within 7 days, file in court an undertaking for the payment any damages that may ensue as a result of the interim orders issued here on 20/9/2018.
iii. In default by the plaintiff to provide the said undertaking the defendant will have no obligation to avail the deposit and the orders issued on 20/9/2018 shall stand stayed pending the determination of the two application together with the Preliminary Objection filed.
iv. However if the defendant shall be the party in default to comply with these orders then the orders as far as deposit shall stand discharged.
v. Parties shall attend before the trial court on the 30/10/2018 for hearing of the two applications and the preliminary objection.
vi. Meanwhile, parties are encouraged to negotiate and consider going to the merits of the suit including a settlement of the undisputed facts.
vii. Costs in the cause.
Dated and delivered at Mombasa this 11th day of October 2018.
P.J.O. OTIENO
JUDGE