Cecilia Namsi Munyiri, Paul Munyiri Kaguambo & Namsi Limited v Cecilia Namsi Munyiri, Paul Munyiri Kaguambo & Namsi Limited [2020] KEHC 8117 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION, MILIMANI

HCCC  NO. E026 OF 2018

CECILIA NAMSI MUNYIRI............................1ST PLAINTIFF/APPLICANT

PAUL MUNYIRI KAGUAMBO.......................2ND PLAINTIFF/APPLICANT

NAMSI LIMITED..............................................3RD PLAINTIFF/APPLICANT

VERSUS

HOUSING FINANCE COMPANY

OF KENYA LIMITED...............................1ST  DEFENDANT/RESPONDENT

KEYSIAN TRADERS AUCTIONEERS..2ND DEFENDANT/RESPONDENT

RULING

1. The Notice of Motion of 28th January 2019 seeks the following prayers:-

1. Clause 6 of the Consent Order issued on 30th May 2018, by this Honourable Court, be enforced.

2. The costs of this Application be borne by the 1st, 2nd and 3rd Applicants.

2. The entire consent of 30th May 2018 reads as follows:-

By consent of Counsel for the 1st, 2nd and 3rd Applicants and Counsel for the 1st Defendant/Respondent it is hereby agreed that:-

1.  That the amount of Kshs.1. 5 Million held in Namsi Interiors Limited Account Number 1000067039 with HFC be transferred immediately to Namsi Ltd Loan account to reduce the outstanding loan arears of Kshs.2. 6 Million.

2.  That the applicant pay a monthly amount of Kshs.246,000/= to clear the outstanding arrears together with the monthly payments of Kshs.247,057/= as per the charge.

3. That HFC upon verification of any amounts owed to Namsi Interiors Ltd shall consider a set off of the outstanding loan arrears.

4. That the Plaintiff shall bear the costs of the application and the Auctioneers fees as per scale provided under the law.

5. That the Respondents shall immediately call of the Auction due today by Keysian Auctioneers.

6. That in default of the above, execution to issue in 45 days and joint valuation be conducted by Llyod Masika within 30 days of the default, costs to be borne by the Applicants.

7. That the Applicants be allowed to extract and serve the hand written notes/consent as orders of the Honourable Court.

3. It is common ground that enforcement of clause 6 would be contingent to clause 3 of the Consent.

4. In the affidavit of Eunice Kamau sworn on 28th January 2019, the Bank takes the position that it verified the accounts of Namsi Interiors Ltd and communicated the same to the Plaintiffs’ lawyers in a letter of 11th July 2018 which is reproduced below:

Wednesday, July 11, 2018

Okatch & Partners Advocates,

NAIROBI

Dears Sirs,

RE:  HCCC NO. E026 OF 2018

CECILIA NAMSI MUNYIRI & OTHERS –VS-

HFC LIMITED & ANOTHER

YOUR REF:  0 & P/479/2017

We refer to the above matter and your letter dated 9th July 2018.

Pursuant to the Consent Order issued on 30th May 2018, our client has since complied with the same.  We refer you to our client’s letter dated 10th July 2018 (copy enclosed).  Further to the above and in compliance with Clause 3 of the Court’s Order, our client has since interrogated your client’s account.  Our client does not owe any sums to yours.  What is outstanding, as mine flags, is settlement of yours of professional fees. The invoice will be generated pretty soon.

Yours faithfully

EDWIN ABUYA

Cc:  Legal Officer – Litigation

HFC Limited

NAIROBI.

5.  On the other hand, the 1st Plaintiff asserts that the Bank has frustrated the conduct of joint verification of the amount owed to the 3rd Defendant and has taken a position that contradicts an earlier one that the Bank owed them some money.

6. I have looked at the consent and reproduced the clause around which the dispute revolves.  The consent empowered the Bank to verify if any amounts were owed by it to Namsi Interiors Ltd.  There was no obligation for a joint verification.  A consent is a contract and that is what the Plaintiffs signed up to.  The case of the Bank is that it has verified the account and nothing is owing from it to the Namsi.  Having made this communication to the Plaintiffs, then they had carried out their duty under the terms of the consent and since default persists then the default clause kicks in.

7. For that reason, I allow the Notice of Motion dated 28th January 2019 with costs.

Dated, Signed and Delivered in Court at Nairobi this 7th Day of February 2020

F. TUIYOTT

JUDGE

PRESENT:

Kamwami for 1st Respondent

No appearance for Plaintiffs

Court Assistant:  Nixon