[2005] KEHC 2496 (KLR)
The court held that the Plaintiff complied with the court order by delivering a cheque for the required sum to the Defendant's Advocates on the last day of the period granted. The cheque was subsequently cleared and the Defendant received the proceeds. The court found that payment by cheque, as defined under the...
Source-derived case information.
- Citation
- [2005] KEHC 2496 (KLR)
- Parties
- Plaintiff: William Olotch; Defendant: Pan African Insurance Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 255 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Discharge Injunction
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Payment by Cheque, Compliance With Court Orders, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Olotch
Plaintiff
Pan African Insurance Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Discharge Injunction
Legal Issues
- 1 Whether payment by cheque delivered on the last day of the court-ordered period constitutes compliance with the court order.
- 2 Whether the temporary conditional injunction should be discharged for alleged non-compliance with payment terms.
Ratio Decidendi
The court held that the Plaintiff complied with the court order by delivering a cheque for the required sum to the Defendant's Advocates on the last day of the period granted. The cheque was subsequently cleared and the Defendant received the proceeds. The court found that payment by cheque, as defined under the Bills of Exchange Act, constitutes payment when delivered, unless the order specifies otherwise. Therefore, the Plaintiff's action satisfied the terms of the order, and the Defendant's application to discharge the injunction for non-compliance was without merit and dismissed with costs.
Court Disposition
application dismissed
Orders
- The Defendant's application dated 21st February 2005 is dismissed with costs.
- The temporary conditional injunction remains in force.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION – NAIROBI CIVIL CASE NO.255 OF 2004
WILLIAM OLOTCH ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
PAN AFRICAN INSURANCE COMPANY LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
RULING
This is an application for an order confirming that the temporary conditional injunction issued on 30th July 2004 stands discharged. The application is expressed to be made under Order 39 Rule 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The reason for the application is that the Plaintiff failed to pay the sum of Kshs 3 million within the 45 days as ordered on 30th July 2005.
The application is supported by an affidavit sworn by one Sharon Maviala a legal officer of the Defendant/Applicant. In opposition to the application is an affidavit sworn by the Plaintiff/Respondent.
Having carefully considered the application and the submissions of Counsel thereon, it appears to me that the only issue for decision in this application is whether or not the Plaintiff/Respondents payment by cheque of the said sum of Kshs 3,000,000/= on the last day of the period granted by the Court was payment in terms of the order of the Court.
The Defendant/Applicant is of the view that the said payment was not within the period granted by the Court since it would take three days to clear the cheque which in effect would be payment outside the period granted by the Court. In the circumstances the Respondent/Plaintiff failed to make payment within time.
The Plaintiff/Respondent on the other hand is of the opinion that he made payment within the period specified by the order of the Court when his Advocates delivered his cheque to the Applicant/Defendant’s Advocates on 13th September 2004 even though this was the last day of compliance.
There is no dispute that the cheque was finally cleared and the Applicant received the proceeds thereof. A cheque is defined under the Bills of Exchange Act as a bill of exchange drawn on a banker payable on demand. In my view the payment by cheque made to the Defendants Advocates was payment to the Defendants. The Defendant’s Advocates received the said cheque on 13th September, 2004 which was the last day for compliance in terms of the period granted by the Court. I have no doubt in my mind that the Plaintiff complied with the Order of the Court and I find and hold that the repayment by cheque received by the Defendant’s Advocates on 13th September, 2004 was within 45 days given by the Court. In the premises the Defendant’s application dated 21st February,2 005 has no merit and is dismissed with costs.
Order accordingly.
DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF MAY 2005
F. AZANGALALA
JUDGE
Read in the presence of: