[2024] KECPT 1166 (KLR)

Mwae v Omondi; Law Society of Kenya Sacco Society Limited (Interested Party) (Tribunal Case 4/E012 of 2022) [2024] KECPT 1166 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1166 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 4/E012 of 2022

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

July 25, 2024

Between

Dorcas Wairimu Mwae

Claimant

and

Ochola Viona Omondi

Respondent

and

Law Society of Kenya Sacco Society Limited

Interested Party

Ruling

1. This ruling dispenses with the Notice to Show Cause Application dated 9th May 2024.

2. The Respondent filed a Replying Affidavit and a further Replying Affidavit. In their Response, the Respondent is opposing the Notice to Show Cause, because the Respondent has shown a willingness to settle the decretal sum during the proceedings and after the judgment was delivered. The Respondent avers that she temporarily halted payment of the decretal sum upon the release of the title deed for the purposes of sale by auction. The Respondent avers that she is willing and able to pay installments of Ksh. 50,000/- per month until payment in full, and she is also willing to find a buyer for Mavoko Town Block 3/20554 on behalf of the Claimant. In their further Affidavit, the Respondent depone that the Respondent has recently been discharged from the hospital with a newborn, and committing her to civil jail would amount to injustice. The Respondent also aver that allowing execution will amount to double jeopardy since the Claimant is currently holding the title deed of the Respondent’s property.

3. The Claimant filed submissions in this Application. In their submissions, the Claimants. In their submissions, the Claimants highlighted the case, noting that when the Respondent was ordered by the court to deposit her titles to the pieces of land with the Tribunal, the Respondents deposited only one title as the other one was allegedly held by another advocate. The Claimants contend that even the title that they have for Mavoko Town Block 3/20554 is registered in the joint names of the Respondent and one Arden Omondi Ochola, and their due diligence revealed that the forced sale value of the land would only be Ksh. 975,000/=. Further, they contend that the Respondent is a person of means and the proprietor of Viona Ochola & Co. Advocates, a prestigious firm.

Analysis 4. The question before this tribunal is whether the Judgement-Debtor has shown cause why execution should not issue. The Judgement Debtor contends that she has just delivered a baby and thus issuing a warrant against her would amount to injustice. The Judgment Debtor has asked this court not to issue the warrants since she has shown a willingness to pay since the matter was instituted.

5. In the case of Tarpo Industries Ltd v Picasso Products Limited the Court held that:-“The Judgment Debtor’s bond fides (good faith) is the most important consideration when the Court considers whether some indulgence can be fairly given to the judgment debtor without unreasonably prejudicing the Decree-holder.”Further in the case of Lavington Security Limited v Nairobi City Water & Sewerage Co. Ltd (2014) eKLR, the Court defined what amounts to “sufficient cause” to include: the debtor is unable to pay lump sum, the debtor can pay by reasonable monthly installments and the application is made in utmost good faith.

6. He who comes to equity should come with clean hands. We ask ourselves, has the judgment debtor come with clean hands? We are afraid we cannot see the clean hands. The judgment debtor has not sufficiently shown how she showed willingness to pay after the claim was instituted. A single deposit of Ksh. 50,000/= since the matter was instituted cannot be said to be willingness to pay for someone who has informed this court that she can comfortably pay Ksh.50,000/= every month. The Judgment Creditor is a guarantor who trusted the Judgment Debtor enough to guarantee her a loan which led to the forfeiture of her shares, and subsequently dividends which would accrue to the savings. The Judgment Debtor has not proven her inability to settle the decretal sum as ordered. Having a young baby is not reason enough why justice should not be done to the judgment creditor, and neither is it any indication of inability to pay a debt. The Judgment Creditor has informed this court that he engaged auctioneers for recovery, but the auctioneers could not find anything to be attached. We, therefore, find that levying execution against the judgment debtor is the last resort for the judgment creditor to have their money.In the upshot of the foregoing, we find that the Judgment Debtor has not shown sufficient cause why the warrant of arrest should not issue and we make the following orders;a.The Judgement Debtor to settle the decretal sum within 14 days of this Ruling, failure to which Warrants will issue on the 15th day of this Ruling.b.Judgement Creditor is awarded costs of the Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 25. 7.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 25. 7.2024HON. BEATRICE SAWE - MEMBER - SIGNED - 25. 7.2024HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 25. 7.2024HON. PHILIP GICHUKI - MEMBER - SIGNED - 25. 7.2024HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 25. 7.2024HON. PAUL AOL - MEMBER - SIGNED - 25. 7.2024Tribunal Clerk - JemimahFestus Onyango and Shadrack Wambui for ApplicantAmelda Marcos holding brief for Ms. Ochola for Respondent.HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 25. 7.2024