[2009] KEHC 2911 (KLR)
The court found that the respondents had not fully purged their contempt, as they failed to return the Massey Ferguson earth mover in working condition and had not compensated the estate for its value. The court accepted the ministry of works' report that the machine was beyond repair and awarded the estate...
Source-derived case information.
- Citation
- [2009] KEHC 2911 (KLR)
- Parties
- Applicant: Charles Wanjohi Wathuku; Respondent: Githinji Ngure; Respondent: Charles Mwangi Gitundu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 60 of 1997
- Procedural Posture
- Succession Cause / Ruling on Contempt and Enforcement of Prior Orders
- Outcome
- Respondents found in contempt; ordered to pay estate Kshs.8,983,356/= and fined Kshs.20,000/= each or serve three months' imprisonment in default.
- Judges
- MSA Makhandia
- Legal Topics
- Contempt of Court, Enforcement of Court Orders, Estate Administration, Valuation of Estate Assets
- 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
Charles Wanjohi Wathuku
Applicant
Githinji Ngure
Respondent
Charles Mwangi Gitundu
Respondent
Procedural Posture
Succession Cause / Ruling on Contempt and Enforcement of Prior Orders
Legal Issues
- 1 Whether the respondents have purged their contempt of court orders issued on 19th October 2002 and 16th August 2002.
- 2 Whether the estate is entitled to compensation for the value of the earth mover and its potential income.
- 3 Whether interest should be awarded on the sum of Kshs.4,526,740/=.
Ratio Decidendi
The court found that the respondents had not fully purged their contempt, as they failed to return the Massey Ferguson earth mover in working condition and had not compensated the estate for its value. The court accepted the ministry of works' report that the machine was beyond repair and awarded the estate Kshs.4,074,899/= as its value. The claim for lost income was considered speculative in full, so the court allowed only half, amounting to Kshs.4,908,457.50. The claim for interest was disallowed because the original order did not provide for it. The respondents were ordered to pay the total sum of Kshs.8,983,356/= to the estate, jointly and severally, with sequestration and sale of...
Court Disposition
Respondents found in contempt; ordered to pay estate Kshs.8,983,356/= and fined Kshs.20,000/= each or serve three months' imprisonment in default.
Orders
- Respondents to pay Kshs.4,074,899/= to the estate as value of the earth mover.
- Respondents to pay Kshs.4,908,457.50 to the estate as income the earth mover would have generated.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 60 of 1997
WATHUKU NGURE .............................. DECEASED
AND
CHARLES WANJOHI WATHUKU .......... PETITIONER
VERSUS
GITHINJI NGURE ............................... 1ST OBJECTOR
CHARLES MWANGI GITUNDU ........ 2ND OBJECTOR
R U L I N G
On 26th February 2009, I held that the respondents were in contempt of court orders and invited them to show cause why they should not be punished. Of course anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise. In a bid to purge their contempt though, the respondents have made efforts to substantially comply with the said orders of the court issued on 19th October 2002 and 16th August 2002 respectively; save for Massey Ferguson earth mover KDT and element of interest on Kshs.4,526,740/=.
With regard to the earth mover, the ministry of works certified it as being beyond repairs. However it was valued at Kshs.4,074,899/= inclusive of the salvage value. The applicant also claimed Kshs.9,816,915/= being the income that the earth mover should have earned over the period at the rate of Kshs.3,063/= per hour as per the ministry of works valuation.
My observations as regards these claims are that the claim for the value of the earth mover is well founded. When the respondents took away the same from the estate of the deceased, it was in a perfect working condition. Due to their negligence, however, the condition of the earth mover has deteriorated such that it is now beyond repair and or salvage. Much as the respondents have claimed that they have since managed to repair it and that it is now in a perfect working condition, I am unable to agree with them. The report from the ministry of works speaks for itself. The earth mover is beyond repair. I do not see how then the respondents would have managed to effectively repair it. In my view the respondents should pay Kshs.4,074,899/= being the value of the earth mover.
As for Kshs.9,816,915/= being the amount that the earth mover would have generated over the period, I am not inclined to approve the whole claim purely because it is speculative. Yes, the ministry of works indicated that such machine would have earned the owner Kshs.3,063/= per hour over the period. However knowing the vagaries of life, it cannot be assumed that the earth mover would have been in a perfect working condition throughout. It could as well have broken down or indeed there may have been occasions when there would be no work at all. Bearing in mind the foregoing I would only allow half of the aforesaid claim meaning Kshs.4,908,457/50.
With regard to the interest that would have accrued on Kshs.4,526,740/=. I have looked at the order made on 16th August 2002 by Juma J and it is silent on the question of interest. Accordingly I would disallow the same.
The upshot of all that I have been saying is that to fully purge their contempt, the respondents are still expected to pay to the estate of the deceased Kshs.4,074,899/= being the value of the earth mover and a further Kshs.4,908,457/50 being the income it would otherwise have generated over the years making a grand total of Kshs.8,983,356/=. This amount should be paid forthwith by the respondents jointly and severally failing which their known properties shall be sequestrated and sold to recover the aforesaid amount. And for their blatant and naked disobedience of valid court orders each of the respondents is further fined Kshs.20,000/= in default to serve 3 months imprisonment each.
Dated and delivered at Nyeri this 3rd day of June 2009
M. S. A. MAKHANDIA
JUDGE