[2022] KEHC 13834 (KLR)

Mucuha v Munge (Civil Case 286 of 2012) [2022] KEHC 13834 (KLR) (Commercial and Tax) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13834 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 286 of 2012

JK Sergon, J

October 11, 2022

Between

Kamau Mucuha

Decree holder

and

Charles Munge

Judgment debtor

Ruling

1. Pending before me for determination are three (3) concurrent applications, all taken out by the judgment debtor, who is also the defendant in the present suit. The first application is the Notice of Motion dated January 24, 2022 supported by the grounds set out on the face of the application and the facts deponed in the affidavit sworn by the judgment debtor, who sought for the following orders:i.Spent.ii.Spent.iii.That the proclamation and warrants of attachment dated January 10, 2022 be declared illegal and be set aside.iv.That the interest reflected in the application for execution be recalculated.v.That the defendant/applicant be allowed to make payments in satisfaction of the decretal amount as follows:vi.Initial lump sum payment of kshs 2,000,000/=vii.Thereafter, monthly instalments of Kshs 350,000/=viii.That the proclamation dated January 10, 2022 and intended execution be declared illegal, void and an abuse of the court process.ix.Any other orders as the court deems just and efficient.

2. The second application is the Notice of Motion dated January 31, 2022 supported by the grounds presented in its body and the facts attested to in the affidavit of the judgment debtor. The following are the orders sought therein:a.Spent.b.That interim stay of execution as sought in prayer 2 of the defendant’s application dated January 24, 2022 be granted pending interparties hearing scheduled for February 21, 2022.

3. The decree holder responded to the two (2) abovementioned applications by putting in the replying affidavit sworn by advocate Livingstone Maina Ombete on February 7, 2022.

4. The third application is the Notice of Motion dated August 4,, 2022. It stands supported by the grounds laid out on its face and the facts stated in the affidavit of advocate Alex Kimtai Cherongis. Herein, the judgment debtor sought for the following orders:i.Spent.ii.Spent.iii.That break-in orders issued on July 14, 2022 be set aside.iv.That pending the hearing and determination of the substantive applications dated January 24, 2022 and January 31, 2022 an interim stay of execution of the decree and proceedings hereto be stayed.v.That a priority date be fixed for the hearing of the applications dated January 24, 2022 and January 31, 2022. vi.Such other or further orders as may be granted by the court in the exercise of its inherent jurisdiction.

5. To oppose the third application, advocate Livingstone Maina Ombete swore a replying affidavit on August 17, 2022, to which Alex Kimtai Cherongis rejoined with a further affidavit he swore on September 2, 2022.

6. At the interparties hearing, it was agreed that the three (3) applications would be heard together. It is apparent from the record that the parties opted to rely on the averments made in their respective documents.

7. I have considered the grounds laid out on the face of the respective Motions, and the facts deponed to in the affidavits supporting and opposing the respective Motions.

8. Concerning the second application dated January 31, 2022, from a reading of the order sought therein, it is apparent that the same has since been overtaken by events and therefore leaves no further orders for consideration at this stage.

9. I will therefore begin with the first application. It is apparent that the orders; though three-fold in nature, are related. I will therefore address them contemporaneously.

10. In his affidavit in support thereof, the judgment debtor states that judgment was entered in favour of the decree holder and against him on May 31, 2019 in the sum of kshs 8,103,630/= and a notice to show cause dated March 16, 2021 was subsequently taken out against him.

11. The judgment debtor states in his affidavit that he applied for an order for a stay of execution and which was granted on the condition that he provides a bank guarantee as security, but which condition he was unable to meet owing to the illness and consequent death of his son.

12. The judgment debtor states that following the above turn of events, he sought for an extension of time to enable him comply with the condition on the order granting a stay of execution, but that his application for extension of time was dismissed by this court on December 16, 2021.

13. It is stated by the judgment debtor that upon the abovementioned dismissal, the notice to show cause dated Narch 16, 2021 was not set down for hearing and yet the decree holder applied for and extracted warrants of attachment and sale against him on January 20, 2022, thereby making them illegal and void.

14. It is also stated by the judgment debtor that the abovementioned notice to show cause bears an erroneous amount which constitutes a gross escalation on the interest and hence the same ought to be recalculated.

15. The judgment debtor states that he is willing to satisfy the decretal amount in the manner indicated in the first application and therefore urges this court to find in his favour.

16. In reply, advocate Livingstone Maina Ombete states that contrary to the averments being made by the judgment debtor, a notice to show cause was obtained and served upon the judgment debtor prior to the commencement of the execution process, thereby making the execution valid and regular.

17. The advocate further states that upon receiving a letter from the judgment debtor’s advocate on a proposal for settlement of the decretal sum, he reverted to the said advocate with a counter proposal, which did not elicit a response from the judgment debtor.

18. For all the foregoing reasons, the decree holder is of the view that the first application is purely intended to delay the execution process and cause frustration to the decree holder.

19. On the subject of the validity of the execution process, upon my perusal of the record, I observed that the decree holder obtained a notice to show cause dated March 16, 2021 and has provided credible evidence to show that the same was served upon the judgment debtor on March 25, 2021.

20. The record shows that the judgment debtor sought for and obtained an order for a stay of execution vide the ruling delivered by this court on October 8, 2021 on the condition that he provides a bank guarantee within 30 days from that date. It is not in dispute that he did not comply with the condition given and consequently sought for the extension of time within which to provide an alternative form of security, which was declined by this court in its order made on December 16, 2021.

21. It is apparent that the notice to sow cause was served and there is no evidence of a response forthcoming from the judgment debtor. The fact that the notice to show cause has not been fixed for hearing does not in itself prevent the decree holder from taking out warrants of attachment. I have already pointed out that the judgment debtor has not deemed it fit to file a response.

22. Concerning whether the interest indicated on the proclamation dated January 10, 2022 ought to be recalculated, upon my study of the record, I note on the one hand that the figure indicated on the notice to show cause totals the sum of kshs 10,336,614/= inclusive of interest and other fees/costs.

23. On the other hand, the proclamation mentions a figure of kshs 16,189,356. 95 inclusive of the decretal sum, interest, taxed costs and other related costs.

24. Upon taking into account the two (2) figures above, I concur with the sentiments raised by the judgment debtor that there is need for recalculation of the interest tabulated in order to ascertain the total sum payable to the decree holder.

25. Regarding the final issue for determination under the first application, on the proposal for settlement of the decretal amount, upon considering the proposal given and the circumstances laid out by the judgment debtor on his inability to settle the decretal sum in full at once and upon balancing the competing interests of the parties, I find the proposal to be reasonable in the circumstances, and I will allow it.

26. This brings me to the third application which sought for an order setting aside the break-in orders issued on July 14, 2022, noting that the orders (iv), (v) and (vi) therein are now spent.

27. On the part of the judgment debtor, it is stated that during the pendency of the first and second applications mentioned hereinabove, break-in orders were issued against him and which orders impede on his right to receive a fair hearing.

28. In reply, advocate Livingstone Maina Ombete states that the judgment debtor’s advocate was engaged in a settlement with his firm, to no avail and leaving the decree holder with no option but to commence execution against the judgment debtor.

29. In rejoinder, advocate Alex Kimtai Cherongis states that since the notice to show cause was never heard, there was no proper basis for issuance of the break-in orders.

30. In the end, this court makes the following orders:i.The motion dated January 31, 2022 is declared to have been overtaken by events hence no order can issue.ii.The motion dated January 24, 2022 partially succeeds giving rise to issuance of the following orders:a.The accrued interest should be recalculated necessitating the rectification of the decretal amount.b.The judgment debtor to liquidate the decretal amount by monthly instalments of ksh 2,000,000/= with effect from November 1, 2022. In default of any one instalment the decree holder shall be at liberty to execute without further reference to court.c.In order for the judgment debtor to comply with (b) above, an order for stay of execution is granted which order should automatically stand set aside if there is default in payment in any one instalment.iii.The motion dated August 4, 2022 is declared to have been overtaken by events hence no order can issue from it.iv.Each party to bear their own costs over the three applications.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF OCTOBER, 2022. ...........................J K SERGONJUDGEIn the presence of:.................... for the decree holder.................. for the judgment debtor