[2022] KEHC 9874 (KLR)

Pollack & another v Sevak (Civil Appeal E107 of 2021) [2022] KEHC 9874 (KLR) (Commercial and Tax) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9874 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Commercial and Tax

Civil Appeal E107 of 2021

DAS Majanja, J

July 8, 2022

Between

Alvin Pollack

1st Appellant

Giorgio D’Angeli

2nd Appellant

and

Chaitanya Amritlal Sevak

Respondent

(Being an appeal from the Ruling and Order of Hon. S. W. Githongori, DR dated 17th September 2021 on Milimani HC COMM No. 757 of 2012)

Judgment

1. This is an appeal from the decision of the Deputy Registrar dismissing the Appellant’s application for execution by way of arrest and committal to civil jail for failing to pay the judgment debt due to the Appellants, as Decree Holders, in HC COMM No. 757 of 2021, Alvin Pollack and Giorgio D’Angeli v Chaitanya Sevak. Since the appeal is from a decision of the Deputy Registrar in execution proceedings, it ought to have been filed in the original file and not as a separate appeal but I do not consider this fatal to the appeal.

2. By way of background, the parties recorded a consent judgement in the main suit on July 6, 2018, where the Respondent agreed to pay USD 607,500. 00 in 20 instalments commencing January 2019 to August 2020. The consent judgment further provided that in the event of default, the entire decretal sum together with interest and costs thereon would become due and payable.

3. The Respondent paid the first 8 instalments after which he sought a revision of the consent order which the Appellants accepted. The Respondent made payments until February 2020 when he stopped. The Appellants applied for execution by way or arrest and committal to civil jail. The Deputy Registrar considered the depositions and submissions and by a ruling dated September 17, 2021 dismissed the application thus precipitating this appeal.

4. The Appellants have challenged the grounds of appeal in its Memorandum of Appeal dated November 18, 2021. They have also filed written submissions in support of their case. The Respondent did not appear at the hearing despite being notified. I have however considered the record and submissions filed before the Deputy Registrar and before this court.

5. In the ruling, the Deputy Registrar cited Jedida Chepkoech Mutai (suing as the Legal Representative of the Estate of Julius Kipkorir (Deceased) v Cherono Beatrice [2018] eKLR and Braeburn Limited v Gachoka and Another [2007] 2 EA 67 and concluded as follows:“I am guided by the decisions above and it is clear that for an application the Decree holder must show that the judgment debtor has means but is evading to pay the decretal sum. The court further pronounced itself on how the decree holder is to achieve this, as was stated in Braeburn (supra) the judgement debtor should be examined so as determine the debtor’s total wealth and indebtedness to determine the judgement debtor’s total ability or inability to pay and whether such inability to pay is from poverty or other sufficient cause during the notice to show cause.I find the decree holder has not satisfied the requirements of Section 38 of the Civil Procedure Act, and demonstrated to this court that the judgement debtor is a flight risk or that he has the means to pay but he is dishonestly refusing to do so. I thus find I am unable to grant the orders as sought and dismiss the application." [Emphasis mine]

6. Although the Appellants raised several grounds of appeal, I think this matter can be resolved by dealing with the issue whether the Deputy Registrar gave reasons for the decision. The Appellants contend, and I agree with them, that a judicial officer must give reasons for their decision. This is provided for in Order 21 Rule 4 of the Civil Procedure Rules which expressly provides that judgments “shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.” This position was affirmed by the Court of Appeal in Judicial Service Commission v Ndururi (Civil Appeal 650 of 2019) [2021] KECA 365 (KLR) (Civ) (5 March 2021) (Judgment).

7. In the part of the ruling which I have set out above, the Deputy Registrar, while appreciating the applicable law, did not explain why the requirements of section 38 of Civil Procedure Act has not been met in light of the extensive affidavits and submissions filed by the parties. The inability or otherwise to pay the debt and whether the Respondent should be committed to civil jail is also a question of fact which the Deputy Registrar did not engage with in order to come to the conclusion reached in the ruling.

8. Let me comment briefly on the issue whether the Appellants met the threshold required for committal of the Respondent. While it is the duty of the Decree Holder to prove the circumstances that support an order for committal, it must also be borne in mind that the ability of the Judgment Debtor to settle the decretal sum is a matter peculiarly within his knowledge which he must prove in line with section 112 of the Evidence Act (Chapter 80 of the Laws of Kenya) which states that, “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” This is buttressed by Order 22 rule 35 of the Civil Procedure Ruleswhich empowers the court to examine the Judgment Debtor as to his means and to order the Judgment Debtor to provide any books and documents including directing him to file an Affidavit of Means and for him to be cross-examined on his deposition. It is clear from the ruling that the Deputy Registrar did not apply her mind to the fact that the proceedings were an opportunity for the Judgment Debtor to show cause why he should not be committed to civil jail.

9. I do not propose to deal with the substantive arguments in order to give the Deputy Registrar to consider all factual issues and come to a conclusion. I therefore allow the appeal. There is also no reason to depart from the rule that costs follow the event.

10. In conclusion and for the reasons I have set out, I allow the appeal on the following terms:(a)The ruling and order dated 17th September 2021 be and is hereby set aside.(b)The Respondent/Judgment Debtor shall appear before any other Deputy Registrar other that Hon. S. Githongori on a date fixed to show cause why execution should not issue by way of arrest and committal in HC COMM NO. 757 of 2021. (c)The Respondent shall pay costs of this appeal and the proceeding before the Deputy Registrar assessed at KES. 20,000. 00 only.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY 2022. D. S. MAJANJAJUDGECourt Assistant: Mr Michael Onyango.Mr Ikoha instructed by Anjarwalla and Khanna Advocates for the Appellants.Chaudhri and Associates Advocates for the Respondent.