[2017] KEHC 5510 (KLR)
The court found that the applicant had established entitlement to the decretal sum as awarded in the judgment of 1st April, 2009, and that the 1st defendant (Hon. Attorney General) had failed to pay its apportioned share despite proper service and the passage of significant time. The application was unopposed, and...
Source-derived case information.
- Citation
- [2017] KEHC 5510 (KLR)
- Parties
- Plaintiff: Tom Cheruiyot Kipngetich; Defendant: Hon. Attorney General; Defendant: Eldoret Express Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 226 of 2005
- Procedural Posture
- Civil Suit / Judgment on Notice of Motion for Contempt and Enforcement of Decree
- Outcome
- Application allowed. Order granted to compel payment of decretal sum within sixty days. No order as to costs.
- Judges
- JV Juma
- Legal Topics
- Enforcement of Judgments, Contempt of Court, Fatal Accidents, Government Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Cheruiyot Kipngetich
Plaintiff
Hon. Attorney General
Defendant
Eldoret Express Limited
Defendant
Procedural Posture
Civil Suit / Judgment on Notice of Motion for Contempt and Enforcement of Decree
Legal Issues
- 1 Whether the Principal Secretary, Ministry of Interior Security, should be compelled to pay the decretal sum awarded in the judgment.
- 2 Whether leave should be granted to commence contempt proceedings against the Principal Secretary for non-payment of the decretal sum.
- 3 Whether the applicant is entitled to enforcement orders in the absence of opposition from the 1st defendant.
Ratio Decidendi
The court found that the applicant had established entitlement to the decretal sum as awarded in the judgment of 1st April, 2009, and that the 1st defendant (Hon. Attorney General) had failed to pay its apportioned share despite proper service and the passage of significant time. The application was unopposed, and the supporting affidavit was uncontroverted. The court was satisfied that the applicant was entitled to enforcement of the judgment and granted an order compelling the Principal Secretary, Ministry of Interior Security, to pay the decretal amount and interest within sixty days. The court declined to make an order on costs and did not expressly address the prayer for leave to...
Court Disposition
Application allowed. Order granted to compel payment of decretal sum within sixty days. No order as to costs.
Orders
- The Principal Secretary, Ministry of Internal Security, is compelled to pay the sum of Ksh 1,418,732 being the decretal amount and interest thereon within sixty (60) days from the date of this order.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 226 OF 2005
TOM CHERUIYOT KIPNGETICH................................... PLAINTIFF
VERSUS
HON. ATTORNEY GENERAL...............................1ST DEFENDANT
ELDORET EXPRESS LIMITED........................... 2ND DEFENDANT
JUDGMENT
Before court is the Notice of Motion dated 5/9/2016 seeking the following orders:
“1. THAT summons to issue to the Principal Secretary Ministry of Interior Security to appear in person at the hearing of this proceeding
2. THAT leave be granted to commence contempt proceedings against the Principal Secretary Ministry of Interior Security
3. THAT an order be granted to compel the Principal Secretary – Ministry of Interior Security to pay the sum of Ksh 1,418,732/= being the decretal amount and interest thereon within fourteen (14) days from the date of this order
4. THAT the costs of this application be provided for
5. THAT such further and other relief be granted to the applicant as this court deems fit”.
The genesis of this application was the Civil Suit No. 226 of 2005 which was heard by the Hon. Judge Justice Martha Koome (as she then was) sitting at the High Court in Nakuru. The suit was a claim for damages arising from a fatal accident which occurred on 3rd December, 2002 along the Nairobi-Naivasha Highway at Kinungi area, which accident led to the death of one RAEL JEPCHUMBA CHERUIYOT (the deceased).
After hearing the matter Hon. Justice Koome delivered her judgment dated 1st April, 2009 in which she made an award of damages in the amount of Ksh 1,101,500/= apportioned 30% to be paid by the 2nd defendant whilst 70% was to be paid by the 1st dependant. The 2nd defendant did pay their 70% share of the award. However the 1st defendant being the Hon. Attorney General have not to date settled their 30% share.
Despite having been properly served with the present Notice of Motion the 1st defendant did not file any documents in reply and also failed to appear on the hearing date to defend and/or oppose the application. As such the court did direct that the matter proceed in their absence.
MR MALINZI counsel for applicant submitted that the decretal sum now due including interest is Ksh 1,418,718/=. The same has been outstanding since 2009. It was submitted that the applicant is entitled to the fruits of his judgment.
As stated earlier this application was not opposed. The averments made in the supporting affidavit remain uncontroverted. I have myself seen and perused the judgment dated 1st April, 2009 in which the original award was made. I have seen the decree dated 20th August, 2010 as well as the certificate of order against the Government dated 20th August, 2010.
I am satisfied that this application has merit and I do allow the same in the following terms-
“An order is hereby granted to compel the Principal Secretary, Ministry of Internal Security to pay the sum of Ksh 1,418,732/= being the decretal amount and interest thereon within sixty (60) days from the date of this order.”
I make no order on costs.
Dated in Nakuru this 17th day of February, 2017
No appearances by either party
Maureen A. Odero
Judge