[2016] KEHC 1908 (KLR)
The court held that the only way to determine the amounts owed between the parties was by taking accounts as previously ordered by Chemitei J. The Plaintiffs' argument that accounts should not be taken due to non-payment was rejected, as the process of taking accounts is precisely to establish what is owed and by...
Source-derived case information.
- Citation
- [2016] KEHC 1908 (KLR)
- Parties
- Plaintiff: Robert James Imbaya; Plaintiff: Dolorosa Achola Imbaya; Defendant: Philip Juma Akoth
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 50 of 2005
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Taking of Accounts
- Outcome
- Application for taking of accounts allowed with costs to the Defendant.
- Judges
- EM Muchoki
- Legal Topics
- Taking of Accounts, Enforcement of Judgment, Court Orders, Set Off of Amounts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Robert James Imbaya
Plaintiff
Dolorosa Achola Imbaya
Plaintiff
Philip Juma Akoth
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Taking of Accounts
Legal Issues
- 1 Whether the Defendant is entitled to an order for taking of accounts as previously sanctioned by the court.
- 2 Whether the Plaintiffs' objection to the taking of accounts on grounds of non-payment is valid.
- 3 Whether the process for taking accounts requires further court directions or can proceed as per prior orders.
Ratio Decidendi
The court held that the only way to determine the amounts owed between the parties was by taking accounts as previously ordered by Chemitei J. The Plaintiffs' argument that accounts should not be taken due to non-payment was rejected, as the process of taking accounts is precisely to establish what is owed and by whom. The court found that there were no outstanding preliminary issues, the judgment had been upheld by the Court of Appeal, and the terms for taking accounts had already been set out. As no settlement had been reached, the Defendant's application for taking of accounts was meritorious and was allowed with costs to the Defendant.
Court Disposition
Application for taking of accounts allowed with costs to the Defendant.
Orders
- The Defendant's application for taking of accounts is allowed.
- Costs of the application awarded to the Defendant/Applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL SUIT NO. 50 OF 2005
ROBERT JAMES IMBAYA …............................... 1ST PLAINTIFF
DOLOROSA ACHOLA IMBAYA …...................... 2ND PLAINTIFF
VERSUS
PHILIP JUMA AKOTH ….......................................... DEFENDANT
RULING
Before me is the Notice of Motion dated 26th February 2015 wherein the Defendant seeks orders for taking of accounts. The merits of the case have been dealt with both in this Court and in the Court of Appeal which upheld the judgment of this Court. In his judgment dated 16th May 2012 my brother Chemitei J sanctioned the taking of accounts by the parties but also held that in the event that no settlement was reached by the parties once they took accounts then they were at liberty to make a formal application before the Deputy Registrar of this Court for taking of accounts. It is Mr. Onsongo's, Advocate for the Defendant, submission that this application is made pursuant to the orders of Chemitei J and that the same shall not prejudice the Plaintiffs in any way. He cited Christopher Ndolo Mutuku & Another V. CFC Stanbic Bank Limited [2014] eKLRas one of the cases where such an order was granted.
In opposition to the application Mr. Mwamu, Learned Advocate for the Plaintiffs has submitted that the order should not be granted as the Defendant has refused to make payments to the Plaintiffs as ordered by the Court. He also argues that filing of audited accounts without the Court's sanction is improper as the Court needs to give directions of the period of time within which the accounts ought to be taken. He puts reliance on the decision of P. J. Otieno J in Jack J. Khanjira & Another V. Safaricom Limited [2016] eKLR.
It is precisely because the parties could not agree on who owed what to the other that Chemitei J ordered them to take accounts. Firstly accounts were to be taken to ascertain the amount so far paid by the Defendant to the Plaintiffs. Secondly accounts were to be taken to ascertain the rents so far received by the Defendant from the date he took over the suit premises until the date of the order and thirdly the amounts received by the Defendant and the amount owed by him to the Plaintiffs once ascertained there was to be a set off and the balance if any would be paid by whoever was owing. It is clear from the submissions of the Advocate for the Plaintiffs that todate his client has not received any payments. It is his submission that for this reason accounts ought not to be taken. I do not agree. The only way parties can confirm who owes what is by taking accounts. There is no preliminary issue outstanding as the judgment of the High Court was upheld by the Court of Appeal. The accounts in this case are not being taken in a vacuum as the Judge did set out the terms upon which they ought to be undertaken and as no settlement has been reached by the parties I am satisfied that the application has merit. The same is allowed with costs to the Defendant/Applicant.
It is so ordered.
Signed, dated and delivered at Kisumu this 27th day of October 2016
E. N. MAINA
JUDGE
In the presence of:-
Miss Adwar for the Plaintiff/Respondent
N/A for the Defendant/Applicant
CA: Serah Sidera