[2018] KEHC 4007 (KLR)

[2018] KEHC 4007 (KLR)

The court held that the Guarantee and Indemnity executed by Mwenda Thuranira was clear in its terms: the guarantor undertook to pay the plaintiff on demand all sums due from the principal debtor up to Kshs. 40,740,000. The obligation of the guarantor was not conditional upon the plaintiff first exhausting remedies against the principal debtor. Since the decretal sum remained unpaid and demand had been made, the guarantor's liability had crystallized. The court also found that the defendant's shareholding in One Twiga Road Limited constituted an asset available for execution, and there was no legal basis to treat it differently from other assets. The court was not persuaded that the...

Citation
[2018] KEHC 4007 (KLR)
Parties
Plaintiff: Team Construction Ltd; Defendant: Myspace Properties (K) Ltd; Defendant: Mwenda Thuranira
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
21 September 2018
Case Number
Civil Suit 568 of 2014
Procedural Posture
Civil Suit / Ruling on Execution Applications Post Arbitral Award
Outcome
Applications allowed with costs to the plaintiff.
Judges
F Tuiyott
Legal Topics
Guarantee Enforcement, Arbitral Award Enforcement, Execution of Decree, Director Liability
Source Language
English
Commercial and Corporate Civil Procedure Guarantee Enforcement Arbitral Award Enforcement Execution of Decree Director Liability

Case Brief

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Parties

Team Construction Ltd

Plaintiff

Myspace Properties (K) Ltd

Defendant

Mwenda Thuranira

Defendant

Procedural Posture

Civil Suit / Ruling on Execution Applications Post Arbitral Award

Legal Issues

  1. 1 Whether the plaintiff is entitled to execute the decree against Mwenda Thuranira under the Deed of Guarantee and Indemnity.
  2. 2 Whether execution can proceed against the defendant's shares in One Twiga Road Limited.
  3. 3 Whether contestation of the decretal sum computation bars execution.

Ratio Decidendi

The court held that the Guarantee and Indemnity executed by Mwenda Thuranira was clear in its terms: the guarantor undertook to pay the plaintiff on demand all sums due from the principal debtor up to Kshs. 40,740,000. The obligation of the guarantor was not conditional upon the plaintiff first exhausting remedies against the principal debtor. Since the decretal sum remained unpaid and demand had been made, the guarantor's liability had crystallized. The court also found that the defendant's shareholding in One Twiga Road Limited constituted an asset available for execution, and there was no legal basis to treat it differently from other assets. The court was not persuaded that the...

Court Disposition

Applications allowed with costs to the plaintiff.

Orders

  • Prayer 2 of the Notice of Motion dated 7th March 2016 is allowed: the plaintiff is permitted to execute the decree against Mwenda Thuranira under the Deed of Guarantee and Indemnity.
  • Prayers 2, 5, and 6 of the Notice of Motion dated 8th March 2017 are allowed: the plaintiff is granted leave to attach and sell the defendant's shares in One Twiga Road Limited, and prohibitory orders are issued against transfer of those shares except in execution of the decree.