Factory Guards Limited v Abel Vundi Kitungu [2015] KEHC 116 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION NO.  621 OF 2014

FACTORY GUARDS LIMITED…….APPLICANT

VERSUS

ABEL VUNDI KITUNGU………….RESPONDENT

RULING

The application dated  12th May 2015 by the applicants  Factory Guards Limited  and  filed in court on the same date seeks from this court orders:-

Spent

Spent

Spent

That the proclamation and warrants of attachment dated 14th April 2015 be declared illegal, irregular and unlawful.

That the auctioneers  fees of  shs 69,700 be borne  by the respondent

That a date for   interpartes hearing of this application be given.

That costs of this application be provided for.

The application is based on the grounds that:-

This court issued an order on 11th November 2014 granting the defendant/applicant a stay of execution in CMCC NO.  3931 of 2011 on condition that the applicant deposits the decretal sum of shs 380,641. 09 in court within 7 days.

The defendant in compliance with the court order deposited the said amount in court on 14th November 2014.

On 16th December 2014  the court ordered  that  50% of the decretal sum be  released to the plaintiff’s advocates and  a letter dated 17th December  2014  was done  by the applicant’s firm to the Deputy  Registrar requesting that the order  be effected  and 50% of the sum deposited   be released to the plaintiff’s advocates.

However, on 15th April 2015, the plaintiff’s proclaimed the applicant’s good despite  the fact that the decretal sum of kshs 380,641,09 had been deposited  in court by the applicant  pursuant  to an order of the court on 11th November 2014  and the plaintiff  was to pursue  release  of the 50% to themselves.

In order to secure its interests and avoid physical attachment, the applicant settled the decretal sum of shs 397,788. 00 vide a cheque dated 21st April 2015.

Having settled  the entire decretal  sum, it is only fair and in the interest  of justice that the decretal sum initially deposited in court on 14th November  2014 be released to the applicant.

It is only fair that this court intervene in the interest of justice and equity and the grants the prayers sought.

The application is supported by the affidavit sworn by Paul Kariba, the legal officer of APA Insurance Company Limited, the defendant’s insurer, sworn on 12th May 2015.

The depositions therein mirror the grounds upon which the application is predicated.  The deponent   also annexes copies of order  of  this court  dated 11th November  2014; cheque issued  dated  14th November  2014 in favour of the Registrar, High court; deposit  slip dated 18th November 2014 issued by the court  to the applicant, letter  dated 17th December 2014 asking for  half of the  decretal sum deposited  in court to facilitate  opening  of a joint interest  earning account, warrant  of sale  of  property in execution  of decree for money; proclamation date15th April 2015  by Mbusera  Auctioneers; copy of cheque  dated      21st April 2015 in favour of Nzamba  Kitonga & Company Advocates  for shs 397,788. 80 and copy  of auctioneer’s invoice  for the attachment  dated 15th April 2015  for  shs  69,700.

The respondents/defendants opposed to this application and filed a replying affidavit sworn by Eric John Mutemi on 19th May 2015.

It is deposed that albeit the applicant claims that it deposited the decretal sum in court on 18th November 2014 as ordered by this court on 11th November 2014 they nonetheless deliberately kept that information away from the respondent.

That the respondent’s counsels  had on 15th January 2015 written to the applicant’s counsels  urging them to facilitate  compliance  with court  orders of 16th December 2014 which ordered that ½ of the decretal  sum be paid to the respondent  and ½ thereof be deposited in a  joint bank account.

That the applicant’s advocates did not respondent  and completely cut  of communications  with the  respondent’s  counsels  and that there is no way the respondent could  have accessed the amount ordered  by the court  and as  deposited  in court without  the active involvement  of the applicant’s  advocates  who were not co-operative.  That the latter dated 17th  December  2014  written  by the applicant’s advocates was never  copied or received  by the respondent’s  offices, it did not request  for a cheque  to be released to the  respondent’s firm’s name as  ordered by  the court, it only requested  for the release  of ½  to be deposited in a  joint interest  earning account  which  was never  opened and the said  letter was received in court registry on 4th February 2015  but respondent’s advocates  were never  notified.  That it was the duty of the depositor  to facilitate the release  of that ½ of decretal sum to the  respondents and to open a joint account  for deposit  of the remaining ½  and  failure to facilitate  that process  was a failure to comply  with  the court order, which compliance  was not done within 30 days  hence the respondent  was right in  instructing  auctioneers to proclaim in execution.

That the  applicant has since settled the decretal sum but  declined to  pay auctioneers  fees plus  extra costs  awarded  in the lower court  and this court totaling  shs 50,000/- despite  demand for the same.

And finally, that the applicant can  have the  decretal sum deposited  in court released  to them subject to their payment  of auctioneers  fees and  the extra costs of shs  50,000/-.

The parties advocates agreed to have the application disposed of by way of written submissions.  The applicant filed  their written  submissions dated 24th June  2015 whereas the respondents  did not  file any submissions  and therefore  this  court is left  to decide on the  basis of  the depositions made by John Eric Mutemi advocate as outlined  above and the applicant’s submissions  on record .

I have carefully considered this application in line with the grounds, supporting affidavit, replying affidavit, annextures written submissions by the applicant and the two authorities relied on HCCA 6/2010 Chairman Agricultural Contractors Kenya Ltd V Rosemary Wanyanya Oyula & 2 others.

The main issues for determination, in  my view, are, as correctly framed  by the applicant and  are as follows:-

Whether  the proclamation and  warrants  of attachment  dated  14th April  2015  should be  declared  null  and illegal, irregular and unlawful.

Who should pay the auctioneers charges?

On whether   the proclamation and attachment was unlawful, illegal and irregular, the answer can be found in the ruling of this court made on 16th December 2014. That ruling determined the applicant’s application dated 16th September 2014 which sought for 2 main prayers:

Leave to be granted to the applicant to file an appeal out of time challenging the judgment and decree of Milimani CMCC 3931 of 2011- Abel Vundi Kilungi Vs Factory Guards Ltd.

Stay of execution of decree in Milimani CM CC 3931 of 2011 above pending hearing and determination of the intended appeal.

Upon hearing both parties on the said application this court did grant a conditional stay of execution of decree in the Milimani CM’s court.  It also granted to the applicant leave to file the intended appeal out of time.  The said appeal was to be filed within 14 days from 16th December 2014.  To date, that appeal has never been filed.

On the  conditional stay, this court  ordered that the respondent be paid ½ of the decretal sum deposited in court  on 18th November  2014  and that the balance  thereof  be released to both advocates  for the parties  to be held  in a joint  interest  earning account in a bank  of their choice  until the  determination of the intended  appeal and the court  giving the green light  on its disposal.  In the summarized order No. 2 this court stated:

….

Stay of execution granted conditional upon the applicant paying half of   the decretal sum to the respondent asthe said sums are held by the court, the court to affect this order as appropriate within 14 days from the date of this ruling.”

The court also ordered that costs of the application to be borne by the applicant in any event and in the intended appeal.

Later on 20th April 2015, this court was confronted by an application filed by the applicant seeking for stay of execution and under certificate of urgency.  That  application did not indicate  whether  or not the  applicant  had filed an appeal following the  leave granted and  on my own motion  I dismissed it with costs to the respondents  on 24th April  2015 for the court could not grant orders in a vacuum.  The applicant then filed another application dated 12th May 2015 herein under certificate of urgency and this court granted interim orders of stay of execution.  Later, the parties advocates agreed and dispensed  with prayers  2 and 3  after they  were overtaken  by the  events of the applicant paying the whole decretal sum to the  respondent’s counsels  thereby warrants of attachment and sale being lifted  automatically.

From the above exposition, I find that there was no justification or at all for the respondent   to instruct an auctioneer to attach the respondent’s property in execution of decree in CMCC 3931/2011.  The reasons are that the ruling of  16th December  2014  which was delivered  in  open court  and was typed and  duly signed  was well within the  knowledge  of the respondent’s  advocates who have deposed  as to what the  ruling provided  for, but carefully avoiding to mention that the  ruling stated  that “ As  the said  sums are held by the court, the court  to effect  this  order as  appropriate  within 14 days from the date  of this ruling.”

This court  was aware, as  at the time   of  pronouncing that ruling  that on 18th November 2014  the applicants  had deposited  the whole  decretal sum into  court and therefore  there would  have  been no need to  burden  the applicant over the ½  sums of  money that   were to be  released to the respondent.  it became the duty of the respondent  to simply walk into the office of Deputy Registrar within the 14 days given and request for  implementation  of the Order  2 of that ruling  which was as clear as crystal.  It did not require the respondent to attach any other property of the applicant to execute the decree for the whole amount after the applicant failed to comply with the conditions of stay and leave to appeal out of time.  In addition, it was not the duty of the applicant to follow up on the release of the ½ of decretal sum in favour of the respondent.  The applicant was however obliged to pursue the release of the other half for purposes of depositing it in the advocates’ joint interest earning account.

Furthermore, as the  applicant had  not even filed an  appeal, the  respondent  only needed to  enforce  the orders  of 16th December 2014  by requesting  the court to  release  to him the whole of  the decretal sum after  such default, without  embarking  on an execution process by way  of attachment  of the applicant’s property.  In my view, not only was that process done in bad faith but were irregular and an abuse of the court process.

In my view, the respondent was  pursuing   a cause of action which  would fail and with the  object of  unnecessarily  and deliberately  harassing  and putting  to expense  the  applicant by frivolous, or hopeless and unnecessary  execution process, only intended to  embarrass  the applicant.

I reiterate that the decretal sum having been  deposited  in court  and the court  having made  a clear order  that the  court to effect  the order as  appropriate, the respondent  had no reason whatsoever to demand  that he be told  again by the applicant that the money was in court  or that the applicant do pursue it for him.  He had no cause whatsoever to cause the attachment and or proclamation of the applicant’s property.  On this point of fact I do not require any superior or concurrent authority to speak to me.  I am persuaded that the courts exist to do justice to the parties and a court of law ought not to do an injustice to the parties.  It would be unfair and unjust to allow a decree holder to attach the judgment debtor’s property for recovery of decretal sum that is deposited in court as security for the due performance of decree   with full knowledge of the decree holder and in the face of a specific order that the court would be responsible for releasing of the deposited sum to the respondent and the applicant as appropriate.

The above issue then leads me to the question as to who should pay the auctioneer’s costs in the circumstances s of this case.  I note that the decretal sum was deposited in the High Court vide an order of this court.  The appeal as intended was never filed by the applicant, thereby the orders if this for stay of execution lapsed and the decree holder   was at liberty to enforce the decree for recovery of the full decretal sum.  The said  sums  were in court and as at the time the  auctioneer  took out  warrants  of attachment  and proclamation in execution of  decree  in the lower court, he was  acting on instructions of the respondent.  The respondent’s advocates were in full control of these proceedings and they knew the contents of the ruling of  16th December 2014.  They ought not to have instructed an auctioneer to attach the property of the applicant.  The process that  the respondent’s  advocates  were engaged  in is one that is deplorable  and unacceptable  and not  even a layman  could have  instructed  an auctioneer in the  circumstances  of this case, when  the court order  was clear that the respondents get their ½ of  decretal sum from court.

In the premise, I find that the respondent’s advocates are personally liable to pay the auctioneers charges.  The said charges to be filed and assessed by the subordinate court.  The circumstances  of this case was  such that since there  is no evidence  that the ruling  or order  of this court  made on 16th December 2014  was filed in the subordinate  court,  I do not fault the  auctioneers for not investigating  or inquiring  whether their actions  were appropriate.

In the end, I find the applicant’s application dated 12th May 2015 merited and I grant it as above.

I order that the respondent’s counsels do pay to the applicant  costs of this application in the sum of kshs 15,000/-.

Orders accordingly.

Dated, signed and delivered at Nairobi this 24th day of November 2015.

R.E. ABURILI

JUDGE