[2022] KEHC 3131 (KLR)

Samjea t/a Business 2000 v Shah & 4 others (Civil Case 689 of 2001) [2022] KEHC 3131 (KLR) (Civ) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3131 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 689 of 2001

JK Sergon, J

May 17, 2022

Between

Azim Samjea t/a Business 2000

Applicant

and

Lakhamshi Virpal Shah

1st Defendant

Kamlaben Lakhamshi Shah

2nd Defendant

Sureshchandra Lakhamshi Shah

3rd Defendant

Ashok Kumar Lakhamshi Shah

4th Defendant

Pratima Lakha Shah t/a Highpark Investmen

5th Defendant

Ruling

1. This ruling is the outcome of two applications. The firstapplication is the motion dated October 30, 2019 while the second application is the motion dated December 20, 2019.

2. Jutendrakumar Lakamshi Shah, the objector herein took out the motion dated December 20, 2019 whereof he sought for the following orders:i.That the attachment of Nairobi LR No 209/5802 be raised and/or removedii.That this court’s attachment orders made on and registered against Nairobi LR No 209/5802 be revoked and removed.iii.That costs of this application be awarded to the objector.

3. The objector filed an affidavit he swore in support of the application. The plaintiff/decree holder filed a replying affidavit he swore to oppose the application.

4. The motion was disposed of by written submissions. I have considered the grounds set out on the motion plus the facts deponed in the rival affidavits. I have also considered the rival written submissions plus the authorities cited. The objected has urged this court to raise and or remove the attachment of LR No 209/5802 since the attachment affects his proprietory rights held in the property.

5. He argues that he is not a judgment debtor yet this court has issued orders to have the aforesaid property attached. The objector further deponed in the supporting affidavit that he is aware that three of the judgment debtors died many years ago and therefore no execution can issue against them.

6. In response to the motion, the plaintiff urged this court to dismiss the motion as an afterthought which was filed with the sole intention of delaying the realization of the fruits of judgment.

7. It is pointed out that the objector has not demonstrated his interest in the suit property and neither has he established the loans to approach the court. The plaintiff pointed out that the attached property is duly owned by the defendants registered in the business name known as M/s Highpark Investments Ltd.

8. The plaintiff further pointed out that the objector has always been represented by the firm of m/s W. Kamuyu & Co. Advocate therefore he cannot feign ignorance of this case.

9. It is pointed out that the application for attachment was served upon the objector’s advocates Ms kamuyu & Co. Advocates which firm of advocates did not oppose the application.

10. Having considered the rival submissions, it is apparent that the judgment delivered on April 6, 2016 was reviewed and amended on 28th July 2016. The judgment was granted against the defendants jointly and severally. The same has not been set aside. It is also clear that the allegations of death and lack of knowledge of the suit were earlier raised vide the application dated August 29, 2016 which application was determined on merits and dismissed.

11. With respect, I agree with the plaintiff’s submission that it matters not that some of the defendants passed away long after the suit had been filed in 2001, what matters is that the cause of action and acts that resulted in the plaintiff suffering loss were done in the year 2000-2001 when the deceased defendants were still alive and proprietors of the firm of High Park Investments.

12. Liabilities attaches to them and their death cannot be used to set aside a judgment against all the other surviving proprietors given that the liability of the partners in this joint venture is jointly and severally.

13. In the end I find no merit in the objector’s motion dated 20th December 2019. The same is ordered dismissed with costs to the plaintiff.

14. The plaintiff took out the motion dated October 20, 2019 in which it sought for the inter alia:-i.Thatthis honourable court be pleased to make an order for sale of the judgment debtor’s land known as LR No 206/5802 by John Mutwiri Mbijiwe trading as Bealine Kenya Auctioneers.ii.Thatthis honourable court be pleased to settle the terms of sale of the judgment debtor’s land known as LR No 206/5802. iii.Thatcosts of this application be borne by the defendant/judgment debtor.

15. The plaintiff/applicant filed two affidavits in support of the motion, one sworn by Christine Adhiambo Oraro while the other is sworn by Azim Sameja.

16. When served with the application, the defendants filed grounds of opposition to resist the application. This court directed the two applications to be disposed of by written submissions.

17. I have considered the grounds stated on the face of the motion plus the facts deponed in the supporting affidavits. I have furtherconsidered the grounds of opposition plus the authorities cited.

18. It is apparent that the plaintiff is basically seeking from this court to issue an order authorizing the sale of the judgment debtor land known as LR No 206/5802 by John Mutwiri Mbijiwe t/a Bealine Kenyan Auctioneers. This court was also beseeched to settle the terms of the sale of the aforesaid sale.

19. It is the submission of the plaintiff/applicant that the judgment debtors’ land has already been attached to answer the decree herein hence it is the plaintiff’s submission that it is in the interest of justice that the aforesaid land be sold to realise the decretal sum.

20. The defendants on the other hand are of the submission that the 1st, 2nd and 3rd defendants/judgment debtors that Lakhamshi Virpal Shah, Kamlaben Lakhamshi Shah and Ashok Kumar Lakhamshi Shah are not owners of LR No 206/5802. The judgment debtors further argued that the decree herein was obtained unlawfully and in violation of the law in that no suit can be set down for hearing against persons who died years ago and that no lawful execution can be undertaken against such persons. They further argued that execution was being undertaken by the wrong parties.

21. The background of this matter is short and straightforward. The plaintiff filed this suit in 2001 and upon service of the summons to the defendants, the firm of M/s Ramesh Manek Advocates entered appearance on behalf of all the defendants. On April 6, 2016, judgment was entered in favour of the plaintiff and against the defendants jointly and severally.

22. The defendants through the firm of M/s Ochichi TLD & Associates filed an application seeking to set aside the judgment and proceedings in this suit the aforesaid application was heard and dismissed vide the ruling delivered on February 14, 2017. A prohibitory order was issued by lady Justice Kamau Judge on May 16, 2019 pursuant to the plaintiff’s application dated May 8, 2019.

23. It is also apparent from the record that on February 24, 2017,Justice Mbogholi (as he then was) dismissed an application seeking to set aside the judgment on the defendants were not aware of the matter.

24. Reverting back to the application, it is the submission of the defendants that Lakhamshi Virpal Shah, Kamlaben Lakhamshi Shah and Ashak Kumar Lakhamshi Shah are not the owners of LR No 206/5802.

25. A careful perusal of the suit file will reveal that the defendants were jointly sued as partners and joint proprietors of the business enterprise known as High Park Investments. This is clearly shown in the amended plaint dated 7th July 2003. In paragraph 2a of their amended defence the defendants admitted the description.

26. With respect, I am persuaded by the plaintiff’s assertion that the defendants’ assertion is baseless. It is not in dispute that the firm of High Park Investment was and is still operating and has not been dissolved nor wound up. The death of any of the proprietors while the business is still operating and alive is what really matters.

27. The parties were sued jointly and severally. The defendants did not effect any change in the particulars of the business entity at the Registrar of Business Names until November 3, 2017 after judgment had been delivered. There is no doubt that the cause of action and acts that led to the loss suffered by the plaintiff/ respondent were done prior to 2001 when the deceased partners were still alive and the suit was filed and even proceeded while they were still alive. The administrators cannot escape lability to settle the judgment sum pursuant to the provisions of Sections 31 and 32 of the Partnership Act No 16 of 2012.

28. The other main ground raised by the defendants against the plaintiff’s motion is that execution is levied against wrong persons and against persons who died long ago. The plaintiff has pointed out that the aforesaid grounds were raised and argued before Justice Mbogholi who in turn heard and dismissed those grounds while dealing with an application seeking to set aside the judgment and the proceedings which gave rise to the said judgment.

29. With respect, I am persuaded by the plaintiff’s arguments. I cannot therefore revisit those grounds.

30. The remaining issue is whether the plaintiff is entitled to the orders sought in the motion dated October 30, 2019. It is not in dispute that Lady Justice Kamau, issued a prohibitory order May 16, 2019. It is also apparent that the application of issuance of the prohibitory order was not opposed by the defendants despite having been served.

31. I am convinced that the plaintiff is entitled to the orders sought as follows:i.An order for sale of the judgment debtor’s land known as LR No 206/5802 by John Mutwiri Mbijiwe trading as Bealine Kenya Auctioneers is granted.ii.In the circumstances of this case I direct that the terms of the sale be settled by the Deputy Registrar of this court.iii.Costs of the motion to be met by the defendant.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:……………………………for the Plaintiff……………………………for the Defendant