Bank of Africa Kenya Limited v Put Sarajevo General Engineering Company, Esed Becirevic & Adnan Terzic [2017] KEHC 9790 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & TAX DIVISION

CIVIL SUIT NO. 51 OF 2017

BANK OF AFRICA KENYA LIMITED..........................................…...PLAINTIFF

-VERSUS-

PUT SARAJEVO GENERAL ENGINEERING COMPANY....1ST DEFENDANT

ESED BECIREVIC...................................................................2ND DEFENDANT

ADNAN TERZIC.......................................................................3RD DEFENDANT

RULING

[1]This matter came up on 19 December 2017 for the 1st Defendant to show cause why it should not be punished for contempt of Court. In attendance was Mr. James Muli, the 1st Defendant's Finance Officer. He had filed an affidavit sworn by him on 14 December 2017 wherein he averred that the 1st Defendant had fully complied with the Court Order of 3 February 2017 by which the 1st Defendant was required to provide a receipt under oath of the schedules of on-going contracts showing the status of completion and outstanding payments and all payments made by the Kenya National Highway Authority and Kenya Rural Roads Authority between 1 January 2015 and 31 December 2016 within 7 days of the Order of the Court.

[2] It is noteworthy however, that the documents were only supplied after the Ruling of the Court dated 6 December 2017 and in response to the Summons issued herein for the attendance of Mr. Muli as well as the Directors of the 1st Defendant. Clearly therefore, the Order of 3 February 2017was not complied with within 7 days as was stipulated, and no reason has been proffered as to why this was the case. In my careful consideration the attitude of the 1st Defendant is inexcusable. Having found it in contempt, it is hereby fined to pay Kshs. 200,000/= within 7 days of the date hereof, failing which execution to issue.

[3] As for Mr. Muli, it is notable that he was not a party to this suit, and that on being summoned he complied and availed the requisite documents. In my view he has discharged his obligation. I note that the Plaintiff's Counsel expressed dissatisfaction with the Statements provided in so far as they are not current. However, the Order of 3 February 2017 was specific to the Period between 1 January 2015 and 31 December 2016. Moreover, it was not a requirement of the Order that the whereabouts of the money or the 1st Defendant's directors be disclosed. Thus, I would agree with Mr. Nyamodi that, in so far as Mr. James Muli is concerned, there has been compliance and Mr. Muli is accordingly discharged of his obligations pertaining to the Summons issued herein on 14 December 2017.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF DECEMBER 2017

OLGA SEWE

JUDGE