[2023] KEHC 23365 (KLR)

Singh v Mukami & another (Civil Appeal E346 of 2018) [2023] KEHC 23365 (KLR) (Civ) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23365 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E346 of 2018

JN Mulwa, J

October 12, 2023

Between

Santosh Kumar Singh

Appellant

and

Linda Mukami

1st Respondent

APA Insurance Ltd

2nd Respondent

Ruling

1. This ruling is in respect of the application dated 15/10/2022 brought under order 22 rule 41; order rule 1 of the Civil Procedure Rules; and sections 1A, 1B, 3B and 34 of the Civil Procedure Act.The applicant Santosh Kumar Sigh who is also the Appellant seeks orders that:1. Spent2. Limited pending interpartes hearing and determination of this application.3. That Britind Industries be joined to the instant application as an interested party or necessary party.4. That a written prohibitory order do issue to restrain the Appellant from transferring or otherwise disposing any of his shares in Britind Industries Limited and/or from receiving any dividends, monthly salary, management remuneration, bonuses, reimbursement or any her payments by virtue of his shareholding in the said Britind Industries Limited in execution of the Decree issued herein on 6th July 2021 and Consequent Certificate of Taxation dated 7th February in the sum of Kshs. 193,050/=5. That the costs of this application be provided for.

2. The grounds for the application are stated on its face, and supported by a Supporting Affidavit sworn on even date by Kennedy Ochieng Advocate for the Respondent, and submissions dated 7/3/2023.

3. In opposing the application, one Beth W. Njeru swore the Replying Affidavit on 9/5/2022 and submissions.

Applicant’s case and submissions. 4. It is submitted that there is a decree against the appellant in the sum of Kshs. 193,050/- issued by the Court on the 10th September 2021 following the dismissal of this appeal.The applicant has tried to execute the same to no avail as no attachable assets have been found save for shares in the interested party company where the Respondent holds 50% of the shares. It is the applicant’s further submissions that the said shares are assets of the Respondent and are attachable to recover the decretal sum as stated in the cases Anil Walia v Vijay Vir Singh & another (2020) eKLR andEagle Vet Tech Co. Ltd v Antony, Obiduhi & another(2019) eKLR.It is further submitted that the Respondent has not disputed being indebted to the Applicant for costs as aforestated; and therefore urge the court to allow the application as prayed.

Case for the Respondents 5. It is not disputed that the Decree has not been settled. It is its case that the interested party company is not a party to the case and has not been joined to the proceedings and it is only after the intended jointer that it would be in a position to respond to the issues before the Court, and as such, no orders can be made against a party who is not a party to the proceedings before the court.

6. Additionally, the respondent seeks that payers No.3 in the application be heard first so as to have the company joined as an interested party in the proceedings before the Court can consider whether or not to allow the rest of the prayers therein, citing the case John Harun Mwau v Simone Haysom and 2 others (2021) eKLR, and Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others (2014)eKLR for the proposition that any party to be affected by a decision of the Court when it is made, unless enjoined to the proceedings, his or her interest will not be protected or articulated unless he or she appears in the proceedings and champions her cause.

7. By the above, it is submitted that the shareholding of the company will be directly affected should the orders sought be granted.Further, it is submitted that the respondent has been willing to settle the decretal sum and only seeks time to fix his financial status, after his company (the interested party) was burnt down in 2018, and his insurer APA are embroiled in a compensation claim in HCCC No. 183 of 2018 - Brifind Industries Ltd v. APA insurance Company Ltd, which is yet to be finalized.

8. Lastly, it is the respondent’s submission that the Decree cannot be executed before it is converted to a Judgment pursuant to section 51 (2) of the Advocates Act, Cap 16. It is therefore urged that the application ought to be dismissed with costs.

Analysis and determination 9. There is no dispute that a decree of the Court dated 6/7/2021 was issued on 10/9/2021. A Certificate of Costs dated 7/2/2022 was thereafter issued upon taxation of costs by the Deputy Registrar of the Court. This Certificate of Costs has not been set aside.The amount is Khs. 193,050/- being party and party costs, against the Appellant Santosh Kumar Singh whose appeal was dismissed by this Court by a Judgment dated 6/7/2021 with costs to the respondents.

10. In the Appeal, the Party stated as an Interested Party in the application before the Court - Britind Industries Ltd - was not a party. At prayer 3 of the application, the applicant seeks an order to have the company enjoined to the application as an interested party or a necessary party. That prayer has not been prosecuted, the applicant stating in its Supporting affidavit that the application has been served upon the said Company, but the company has not responded, and further that by a CR12 the said company lists the respondent as a director and shareholder (“Exhibit KO-1A to E”).

11. The main prayer by the applicants is directed to the company – the intended interested party - which is not a party to the proceedings. To the court’s knowledge, no execution proceedings have been taken against the company or any of its directors towards unveiling the veil of its incorporation.

12. The company has not been given an opportunity to state its case and interest, which is the purpose of jointer of parties as stated in the Supreme Court Case in Communications Commission of Kenyaand Meme v Republic(2004) IEA 124 that;1. Jointer of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;2. Joiner to provide protection for the rights of a Party who would otherwise be adversely affected in law.3. Jointer to prevent a likely course of proliferated litigation.Further, the court in the same case rendered itself on who an interested party is in litigation as follows;“An interested party is one who has a stake in the proceedings, though he or she was not a party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way.Such a person feels that his or her interest will not be well articulated unless he himself or herself appears in the proceedings, and champions his or her cause.”

13. The prayers before the court, if granted would definitely and negatively affect the operations of the company – the intended interested party - being restrained from doing what it ought to do; paying monthly salaries dividends bonuses or any other payment to the respondent and or transferring or disposing the respondents shares in the company. Without a doubt these are drastic measures for which the company ought to be given an opportunity to be heard before they are made.

14. However, had the intended interested party been given the opportunity to be heard on the issues, the Court would have had no difficulty in finding that shares in a company are assets that are capable of being attached in execution of a decree. see Aril Walia V. Vijay Vir Singh(Supra).

15. Additionally, the respondent/appellant does not deny being indebted to the applicants, and has indicated his willingness to enter into a payment scheme due to his current financial status, which have not been controverted.

16. To that end and for justice to be seen to be done, a party willing to satisfy a decree, and only requesting to be allowed to pay in an amicably negotiated method should not be denied such a chance, unless sufficient and justifiable reasons are put forth, which is not the case in this application.The Court therefore urges both the applicants and the respondent to initiate an amicable settlement scheme of the debt in the near future, taking into account the decree holder has a decree in her hands and there being no legal bar to execute the same in whatever legal mode available to herself, it would be in the interest of the respondent to make reasonable payment proposals.

17. For the foregoing, the Court finds the application dated 15/10/2022 to be premature, and is dismissed with costs.

Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 12THDAY OF OCTOBER 2023. JANET MULWAJUDGE