[2023] KEHC 23302 (KLR)

Ravate & another v Agbeko & 2 others; Ravasam Development Co. Ltd & another (Interested Parties); Sankok (Objector) (Civil Case 450 of 2011) [2023] KEHC 23302 (KLR) (Commercial and Tax) (6 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23302 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Case 450 of 2011

A Mabeya, J

October 6, 2023

Between

Farouk Ravate

1st Plaintiff

Justine Samourgompoulle

2nd Plaintiff

and

Eric Agbeko

1st Defendant

Phillip Nyambok

2nd Defendant

Spire Bank Limited

3rd Defendant

and

Ravasam Development Co. Ltd

Interested Party

Young Tai Engineering Co. Ltd

Interested Party

and

Nicholas Sankok

Objector

Ruling

1. Before Court are two applications dated June 6, 2023 and September 1, 2023 respectively. The one dated June 6, 2023 is by the plaintiffs while one dated September 1, 2023 is by the objector. I propose to begin with the latter.

2. The objector’s application was brought pursuant to Order 21 Rule 57 of the Civil Procedure Rules. It sought the following orders: -“1. Spent

2. That pending the hearing and determination of these objector proceedings, this Honourable court be pleased to order the stay of its execution of its judgement issued on January 20, 2020 that is to mean that the Plaintiffs should not interfere with quiet possession of the Objector's possession of the suit property.3. That this Honourable Court be pleased to arrest the ruling of the application dated June 6, 2023. 4.That there be a declaration that the Objector bought the suit property for valuable consideration of the suit property and therefore the Plaintiffs cannot execute against him.5. That costs of this application be provided for.”

3. The application was premised on the grounds that the objector being unaware of the existence of this case, entered into a purchase agreement for the shares of the 1st interested party for valuable consideration on November 8, 2019 and that upon the purchase of all of the shares of the 1st interested party, the objector was duly issued with a new CR12.

4. That Hon. Justice Tuiyott (as he then was), delivered a partial judgment on January 20, 2020 which inter-aliadirected that the shareholding and the directorship of the 1st interested party be vested in the plaintiffs. The objector argued that the said judgment failed to consider the fact that the ownership of the 1st interested party and to an extension the suit property had changed from the defendants to the objector.

5. The objector asserted that as a consequence of the plaintiffs being the directors of the 1st interested party, they have sent letters to the objector’s tenants requesting them to deposit rent to the real owners of the property and that unless this application is heard as a matter of urgency, the objector will suffer irreparable damage not September 1, only to his main source of income being taken away from him but also his reputation among right thinking members of the society who hold him in high esteem as an astute businessman.

6. The plaintiffs opposed the application through grounds of opposition dated September 20, 2023. They argued that the application was res judicata as the issues raised therein were heard and determined vide the ruling delivered by Tuiyott J (as he then was) in his partial judgment dated January 20, 2020 and affirmed by the Okwany J on 30/9/2021. That the objector lacks locus standi in this matter as he is not a party in the instant suit, neither has he sought orders to be enjoined in the proceedings.

7. They further contended that the objector has no legal or equitable right in the ownership of the 1st interested party and its assets - Elysee Plaza (the Suit Property).

8. In response to the grounds of opposition, the objector filed a supplementary affidavit sworn on 25/9/2023 by himself. He denied that the Court neither functus officio nor the application res judicata. That he had locus in the matter as he has legal, beneficial and equitable interest over the suit property.

9. I have considered the pleadings and submissions of the parties filed for and against the application.

10. The objector is seeking a stay of execution of the partial judgment delivered on January 20, 2020 in order to stop the plaintiffs from interfering with his possession of the suit property. The objector further sought a declaration from the Court that he bought the suit property for valuable consideration therefore the plaintiffs cannot execute against him.

11. In the judgment of January 20, 2020, the Court made a finding inter-alia that, the plaintiffs were the true and rightful directors of the 1st interested party. The Court further ordered the transfer of all the shares of the 1st interested party to the plaintiffs effectively bestowing full ownership of the 1st interested party upon them.

12. Further, the Court issued a permanent injunction restraining the 1st and 2nd defendant and any other person(s) from interfering in any manner with the suit property owned by the 1st interested party.

13. As if that is not enough, in its ruling of 30/9/2021, the Court declined the objector’s application to be enjoined in these proceedings as an interested party as the suit had already been determined vide the judgment of January 20, 2020.

14. For the foregoing reasons, the issue of ownership of the 1st interested party and its assets such as the suit property was fully and finally determined. This Court is therefore functus officio in so far as such matters are concerned. Further, the issues have already been determined conclusively and are therefore res judicata.

15. Accordingly, the objector’s application is without merit and is therefore dismissed with costs.

16. The Motion dated June 6, 2023 was by the plaintiffs. It was made, inter-alia, under Article 159 of theConstitution of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act. It sought orders that the Police do provide the plaintiffs and or their agents with security in their quest to gain possession of the property known as Elysee Plaza/Ntashart Plaza erected on LR No 2/186 (“the suit property”) in line with the judgment of the Court made on January 20, 2023 and the ruling of May 12, 2021.

17. The grounds thereof were that vide the said judgment, the defendants were, inter-alia, restrained from dealing with the suit property. That due to abuse of court process and fraud of the defendants, the plaintiffs have been unable to take possession of the suit property.

18. That vide a ruling of this Court made on May 12, 2023, the Court made a finding that the defendants were frustrating the execution of the judgment of the Court. It restrained the bank from exercising its statutory power of sale as there had been non-compliance with the judgment of the Court. The plaintiffs set out in detail the frustrations they have undergone in trying to take possession of the suit property. That their agents had been physically assaulted in the past when they attempted to take possession.

19. That Okwany J had previously dismissed a similar application on the ground that the police should not be involved in execution of civil orders. That it was clear that the defendants would not hand over possession of the suit property peacefully.

20. Vide a further affidavit of Amanya Cohen, Advocate, it was averred that after the Court directed on May 12, 2023 that the orders of Tuiyott J be complied with within 21 days, the defendants filed an affidavit of compliance wherein they denied frustrating the execution of the judgment of this Court. That in the premises, it was fair and just that the Court does intervene so that there is peaceful take-over of the suit property.

21. The application was agued orally on 2June 6, 2023. Counsel for the plaintiffs submitted that where the matter had reached, it was only fair that the police are involved in order to comply with the law and the subject Court order. That Cohen Amanya, Advocate had gone to the suit property but was repelled.

22. The application was opposed by the Company represented by Learned Counsel Mr. King’ara. A replying affidavit was filed in respect thereof. Mr King’ara submitted that the matter was res judicata as Okwany J had dismissed a similar application. That there was no order for possession for which the prayers sought can be granted. That the judgment had only declared the plaintiffs as directors and shareholders of the Company but not the ownership of the assets of the Company.

23. That the application was incompetent as it was not supported by any of the directors but an advocate. That the suit property was in the possession of a third party.

24. The judgment of Tuiyott J (as he then was) is still in force. It made a raft of orders including restoring the ownership and management of the Interested Party upon the plaintiffs. The plaintiffs are the ones supposed to run its affairs including its assets. In this regard, it is not correct as was submitted by Mr. King’ara that, the assets of the Company were not vested in the plaintiffs. As directors of the Company, it is the plaintiffs who are supposed to control its assets.

25. As regards the affidavits in support of the application, it is true that they were sworn by advocates and not the plaintiffs. However, there is nothing wrong with that as no contested issues were raised therein. It involved matters touching on the prosecution of this suit. They were matters in the personal knowledge of the concerned advocates.

26. As regards the involvement of the police, Kenya is not a police state. It is a country governed by the rule of law. The law is clear on how civil orders are to be executed. Indeed, Courts have hitherto loudly pronounced themselves on this issue.

27. In Kamau Mucuha vs The Ripples Ltd Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388: [1993] KLR 35, Kwach, JA expressed himself as follows: -“The only valid criticism of the order of the judge as of now, but which does not swing the scale one way or the other in this application, is the direction that the assistance of the police should be enlisted to secure compliance by the applicant. The police should never be involved in securing compliance with court orders as there is specific provision for the enforcement of an injunction under order 21 rule 28 of the Civil Procedure Rules.”

28. In George Arab Muli Mwalabu vs Senior Resident Magistrate Kangundo & 2 others; Festus Mbai Mbonye (Interested Party) [2019]eKLR it was held:-“Whereas in exceptional cases, the Court may be entitled to direct that police maintain law and order during the execution of its decisions, it is clear that the police have no role otherwise in the execution of civil process. That role is simply restricted to overseeing that peace, law and order is maintained during the process of execution which process is to be undertaken by a duly authorised court officer. It is however my view that such exceptional order ought to be granted only where there is satisfactory evidence of the likelihood of a resistance to the execution of the said decisions and ought not to be dished as a matter of course or simply for the asking.”

29. From the foregoing, it is clear that the police are not supposed to be involved in matters civil. However, what happens where matters civil are likely to generate to criminality? This being a country governed by law, law and order must at all times be maintained. Where there is a likelihood of breakdown of law and order in execution of civil orders, it is imperative that the constitutionally recognized instruments of violence are applied to maintain the law.

30. In the present case, it is clear beyond peradventure that certain parties are hell bent to frustrate the legal process. Court orders are neither mere suggestions or proposition or recommendation. They have a force of law. They must be obeyed even if it means that lawful violence is to be metted out to ensure compliance.

31. The bank is suffering because no accounts have been taken. An staggering amount of Kshs.180,000,000/- is out there and no one is responsible therefor because the interested party and its assets are out of the control of the plaintiffs. There is evidence that the order of Tuiyott J will never be complied with as they are being resisted and any attempt to enforce them in the normal manner, it is met with the likelihood of violence.

32. For the foregoing reasons, I am satisfied that this is an exceptional case where the police should be involved by ensuring that the possession of the suit property is handed over to the lawful directors of the Company. The Court is satisfied that the application is merited and allows it.

33. Accordingly, the application dated June 6, 2023 is allowed as prayed while the application dated September 1, 2023 is dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER, 2023. A. MABEYA, FCI ArbJUDGE3