[2021] KECPT 509 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 391 OF 2016

PETERSON KAMAU KIARIE ....................................…...................1ST CLAIMANT

JOHN NJOROGE IRUNGU...............................................................2ND CLAIMANT

BERNARD MBOGO............................................................................3RD CLAIMANT

KIMANI KARANJA KAROKI............................................................4TH CLAIMANT

SAMUEL MWANGI MBUGUA .........................................................5TH CLAIMANT

PETER MWANGI MUCINA...............................................................6TH CLAIMANT

GACHUHI CYRUS MWANGI ............................................................7TH CLAIMANT

VERSUS

HURUMA MINIBUS SACCO LIMITED ......................................... RESPONDENT

RULING

Vide the Application dated 12. 8.2020, the Judgment Debtor has moved this Tribunal seeking for Orders inter alia:

1. That this application be certified as urgent and services be dispensed with in the first instance;

2. That this Honorable Tribunal be pleased to stay the warrants of attachment and the execution orders issued by this Honourable Tribunal on 31st January 2020 and re-issued on 30th July 2020 pending hearing and determination of this application. ;

3. That this Honourable Tribunal be pleased to call into account all the interest payable in this matter;

4. That this Honorable to call upon the Auctioneers to file and justify their bill of cost being charged;

5. That this Honourable Tribunal to order and direct the judgment debtor to be allowed to pay the balance of Decretal amount in installments as already proposed; and

6. That this Honourable Tribunal be pleased to issue any such other order as it may deed expedient and just for the ends of justice.

The Application is supported by the grounds on its face and the following Affidavit.

a. Supporting Affidavit sworn Jacob Singa Imbai on 12. 8.2020; and

b. Further Replying Affidavit sworn by the said Jacob Singa Imbai on 10. 9.2020.

The Respondent has opposed the Application vide the Replying Affidavit sworn by John Njoroge Irungu on 8. 9.2020.

Vide the directions given on 29. 10. 2020, the Application was canvassed by way of written submissions. The Respondent filed its written submissions on 15. 9.2020 while the Claimants did so on 21. 10. 2020.

Judgment Debtor’s Contention

It is the Judgment Debtor’s case that the Decree Holder as advertised its Motor vehicle Registration No. KCG 076Yfor sale yet it has substantially settled the decretal amount. That out of the original sum of Kshs.706,231. 70/=, the Judgment Debtor has paid a sum of Kshs.613,500/=. That the Auctioneers (ICON) have so far been paid Kshs.65,000/=.

That the decree holder have been computing interest at their own rates and scales and not taking into account the installments paid.

Decree Holder’s Case

On its part, the Decree Holder has opposed the Application or grounds that the Judgment Debtor is not candid on settlement of the Decretal amount. That judgment was entered in the matter almost 2 years ago yet the Judgment Debtor has only been making intermittent payments. That the prayer for computation is not warranted as the Judgment Debtor has given the said computation to the Respondent. That if the Respondent is sincere, then it should pay what is not in dispute.

Issues for determination

The Judgment Debtor’s Application has presented the following issues for determination :

a. What is the balance of the decretal amount?

b. Whether the Judgment Debtor has made out a case to be allowed to settle the balance of the decretal amount by way of installments;

c. Whether the Judgment Debtor has made out a proper case to warrant the Auctioneers to be ordered to account for the monies paid to them.

Balance of the Decretal Amount

Both parties agree that they entered a consent on 8. 11. 2018. The said consent set out the decretal amount to be Kshs.513,501. 70/=. Vide a Ruling delivered by the Tribunal on 8. 1.2019, the decretal amount was to attract interest and costs from the date of filing the claim.

We have perused the decree which was drawn subsequently. It sets out the decretal amount as follows:

a. Principal amount – Kshs.513,501. 70

b. Interest - Kshs.144,725. 60

c. Costs - Kshs.145,630

The said decree is dated 5. 7.2019.

From the submissions filed by the Respondent, it seems to challenge and/or contest the manner in which costs and interest was arrived at. We hasten to say that the decretal amount (which includes costs and interest) is as per the decree set out above and that the same is not subject to challenge in the manner proposed by the Judgment Debtor.

The decretal amount is clearly discemible in the said decree in no uncertain terms.

As per the said decree, the total sums payable is thus Kshs.803,856. 70 out of this, the claimant confirms receipt of Kshs.613,500. 00 leaving a balance of Kshs.190,357. This is the figure the Judgment Debtor confirms to be the balance due and owing.

The Decree Holders contends that this amount continues to accrue interest at court rates. We agree with them as much.

We thus find that the balance of decretal amount is Kshs.190,357 and the same continues to accrue interest at court rates until payment in full.

Whether the Decree Holders were justified to recover the said balance

It is admitted and even discemible from the record that the Judgment Debtor is still in arrears o Kshs.190,357. The Decree Holder is thus within its right to recover the same by way of execution.

Auctioneers fees

The Judgment Debtor has taken issue with Auctioneers fees. From the material before us, the Auctioneer has been paid a sum of Kshs.60,000. 00. The Judgment Debtor wants us to compel the Auctioneer justify this figure.

We hasten to say that assessment of auctioneers fees, much as the Advocate fees are governed by separate and distinct regimes of law. Auctioneers fees are reckoned from the Auctioneers Rules. If a party has a dispute about the sums claimed by the Auctioneer then the appropriate approach to ask the relevant court to first ascertain the said fees before payment one cannot pay fees the purport to work backwards.

Therefore, to the extent that the Judgment Debtor paid Auctioneers fees without ascertains its legality, we do not have the requisite jurisdiction to reverse the same.

Payment by installments

Whilst we have jurisdiction to make an order for settlement of decretal by way of installments, by dint of order 21 Rule 12 of the Civil Procedure Rules, we find that the Judgment Debtor in the present case has not made out a case to warrant us to do so.

Conclusion

The upshot of the foregoing is that we do not find merit in the Judgment Debtor’s Application dated 12. 8.2020 and hereby dismiss it with costs to the Decree Holder.

Ruling signed, dated and delivered virtually this 4th day of March, 2021.

Hon. B. Kimemia Chairperson Signed 4. 3.2021

Mr. P. Gichuki Member Signed 4. 3.2021

Mr. B. Akusala Member Signed 4. 3.2021

Thuita Advocate for Claimant/Respondent

No appearance for Respondent/Applicant

Hon. B. Kimemia Chairperson Signed 4. 3.2021