Mbigi Njuguna & Co Advocates v Town Clerk Nairobi City Council [2017] KEHC 7789 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  1735 OF 2004

IN THE MATTER OF AN APPLICATION BY M/S MBIGI NJUGUNA & CO. ADVOCATES FOR AN ORDER OF COMMITTAL AND  SEQUESTRATION FOR CONTEMPT OF COURT.

AND

IN THE MATTER OF CONTEMPT OF ORDERS  OF MANDAMUS MADE  ON          6TH MAY 2005 BY THE HON. JUSTICE NYAMU J. IN HIGH COURT MISC. APPLICATION NO.  1735 OF 2005   AT NAIROBI.

BETWEEN

MBIGI NJUGUNA & CO. ADVOCATES………………………APPLICANT

VERSUS

THE TOWN CLERK NAIROBI CITY COUNCIL …………..RESPONDENT

RULING

1. By  a notice  of motion dated  20th February, 2013  and  filed in court on 22nd  February  2013, the applicant  who is also  the main applicant in this matter, the law firm of Mbigi Njuguna & Co. Advocates  sought from  this court the following  orders:

1. Spent

2. That this suit be consolidated with Nairobi HCC Miscellaneous No. 308 of 2006 for the purposes of taking accounts.

3. That all the money deposited as a refund   of decretal sum in Nairobi HCC Miscellaneous Application No.  308/2006   be held or retained in court subject to further orders of this court   and hearing of this application.

4. That once accounts are taken and the sum due to the applicant determined, the money deposited in the said Nairobi HCC Miscellaneous No. 308 be ordered to be released to the applicant.

5. That upon release  of the said money  to the applicant, the judgment debtor  be asked to  show cause  why the property  of the judgment  debtor should  not be  attached  by  way of  sequestration  for continued  contempt  of  court order  of mandamus  given on 6th May 2005.

6. That this court make such other or alternative orders as it deems fit.

7. That the respondent be condemned to pay costs of this application.

2. The application is predicated on the grounds that:

a) The respondent  was ordered  by an order of mandamus given on  6th May  2005 to pay to the applicant  the decretal  sum of  kshs  775,994. 95 together with  costs  and interests.

b) That the respondent paid only a part of the decretal sum  leaving a balance of shs 506,567 as of 17th November 2008 which sum  has continued  to attract  interest  at court rates  and  stood at courts rates and stood at kshs 772,211 as of 17th January 2013.

c) The respondent had promised to address the issue of the outstanding balance back in March 2011 but has continued to neglect the issue.

d) On 23rd March 2012, kshs 244,628 was deposited into account for the benefit of the respondent herein as  accounts  were  being taken  relating  to  execution  of a decree  in  Nairobi  HCC Miscellaneous  No. 308 of 2006   wherein the  respondent   is a  judgment debtor.

e) The respondent  has  now applied  for  release of the said  sum to itself  without  satisfying  the amount  owing in the decree  in this case.

f) Unless orders are given immediately, the said amount will inevitably be removed from court   and be   unavailable for attachment.

g) That both cases relate to a balance of legal fees   owed by the respondent to the applicant and the respondent has failed to pay in disobedience of orders of mandamus.

h) That it is necessary that the two matters are dealt with together so as to erase disharmony and conclusively finalize the accounts between the parties.

3. The motion  is further  supported  by an  affidavit  sworn  by Dominic  Njuguna  Mbigi  on 20th  February  2013  reiterating  the  grounds  as above  reproduced  while  deposing that albeit the respondent  paid the principal sum in September  2006   after a mandamus  order made on 6th  May  2005, it refused to pay the interest and costs and that on 14th April  2008, Honourable  Dulu J. who heard contempt application directed the Deputy Registrar  to ascertain the amount  still owing  and  costs  to be  taxed.

4. That on  4th June  2008  the Deputy Registrar  ascertained  the outstanding  amount of shs  349,516. 63 and  costs  were taxed   at  kshs  136, and that  as at  24th November  2008  the outstanding  amount   was  shs  506,567.

5. That despite  writing   to the respondent  demanding  for  shs  648,406 on 1st March  2011, the respondent  responded that  they will  ascertain the  accounts  and  revert  but have   not hence the  outstanding   sum as at  17th February  2013   was shs   772,211  using   12%  court rate.

6. That meanwhile, the respondent   was compelled  by the court vide   decree   in Nairobi HCC  Miscellaneous  308/2006  to pay  to the applicant  proceeds  of a decree  and that  after execution, the  judgment debtor   claimed  to have  overpaid   the decretal  sum and  applied for   refund  of excess hence  the applicant   was ordered to deposit   kshs  244,628  as a condition for stay pending  appeal of some adverse  orders.

7. That later, the order for stay of execution   were discharged   leaving the amount available for collection from court.

8. That the respondent now has applied to court for release of the money to itself.

9. That the said sums  are attachable  because the   respondent  still owes  the applicant decretal  sum hence  it is necessary  to consolidate the matters  so that   comprehensive   accounts  are taken  in both matters and the actual sum due from the respondent to the  applicant be  ascertained   and that since the  respondent has  refused to pay the  outstanding  sums despite   clear court  orders, its  property  be  sequestrated  for satisfaction of the  balance outstanding  after taking  of  accounts.

10. The application was not opposed by the respondent   despite service upon the latter   and substitution of the then defendant Nairobi City Council with the City Council of Nairobi.

11. On 5th November, the applicant filed submissions in support of his application while reiterating the depositions and grounds reproduced in this ruling.  No decided cases or statutory provisions were relied on.

Determination

12. I have carefully considered the applicant’s application dated   20thFebruary 2013, the grounds, supporting affidavit, annextures and submissions filed by the applicant.

13. In my view, the issues for determination are whether the applicant is entitled   to the orders sought.

14. There is no dispute that the respondent owes the applicant interest and costs in this matter, after settling the principal sum.  There is also no dispute that  in HCC  308/2006  which is between the same parties  herein, the  respondent  claimed  that it has overpaid  the applicant herein hence  the order  for  depositing   of shs  244,628 into court  for the benefit   of the respondent  until  accounts  are taken relating to execution in that matter wherein the respondent  is the judgment debtor.

15. The only question is whether the court should consolidate   the two matters for purposes   of taking accounts and if so, whether the applicant is entitled to the rest of his prayers.

16. Order 11 Rule 3(1) (h) of the Civil Procedure Rules provides for consolidation of suits in appropriate   matters.  The purpose of consolidation of suits is with a view to furthering the expeditious disposal of the cases and to ensure case management.

17. The principle of consolidation of suits was restated in Stunberg and Another   Vs Pot geiter EA [1970] 323 that:

“ Where  there are  common  questions of  law or facts  in actions  having sufficient   importance in proportion to the rest of each action to render it desirable  that the whole  of the matters should be  disposed  of at the same time, consolidation should be ordered.”

18. In Prem Lalla Naliaka &Another vs Chandi Prasad Sikaria [2007] 2 SC of India case 551 it   was stated:

“Itcannot be disputed that the court has power to consolidate suits in appropriate cases. Consolidation  is a process  by which two or more causes  or matters  are by order  of the  court combined or  united  and  treated  as one cause  or matter.

The main purpose of consolidation is therefore   to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action.  The jurisdiction to consolidate  arises  where there are two  or more matters  or causes  pending  in the court and  it  appears   to the court  that some common  questions  of law or fact arises  in both or  all the suits  or that the   rights   of relief   claimed   in the suits  are in respect   of or arise  out of   the same transaction or series of  transactions; or that of some other reason  it is desirable  to make an order consolidating  the suits.”

19. In Law Society of Kenya V The Centre   for Human Rights and Democracy, SC Pet 14/2013 the Supreme Court of Kenya stated :

“ The   essence of consolidation is to  facilitate   the efficient   and  expeditious  disposal  of  disputes   and to provide a  framework  for a fair  and  impartial  dispensation of  justice  to the parties.  Consolidation  was never  meant to confer  any undue  advantage  upon the  party  that seeks it,  nor  was it  intended  to occasion any disadvantages towards the  party that opposes it.”

20. Therefore, is this case amenable to consolidation with HCC Miscellaneous Application 308/2006?  In deciding   whether or not to consolidate matters, the court must be guided by the following principles:

1. Whether the same question of law or fact arise in both cases.

2. Whether the rights or reliefs claimed in the two cases or more arise out of the same transaction or series of   transactions.

3. Whether any party will be disadvantaged or prejudiced or whether consolidation will confer undue advantage to the other party.

21. In the instant case, it is has not been stated that the two files concern a common issue or issues arising from the same transaction or series of transactions. It was upon the applicant to say so in his affidavit and annex evidence of what the other matter was all about as this court did not have the opportunity of handling that other matter. What is not in dispute, however, is that both matters concern a decree for monies owed to the applicant advocate by the respondent client.

22. It is alleged that in both  cases, execution of the respective decrees  for taxed  costs   was   pursued  by way  of mandamus   and  it was alleged that in  HCC Miscellaneous  308/2006,  the applicant  was overpaid hence, the order that he pays into court what was considered to be excess  money in   order for accounts to be undertaken.

23. On the other hand, in the present case it is clear that the decree has not been settled in that there is some outstanding sum after payment of the principal sum, leaving out interest and costs.

24. Although the there is a claim that the respondent owes money to the applicant in both the cases, there is no evidence that the  two cases  arise out of the same  transaction or series of  transactions.

25. Further, it is clear that if the consolidation of the two cases is done the respondent   will be disadvantaged as the consolidation will confer undue   advantage to the applicant since no accounts have been done in the HCC Miscellaneous 308 of 2006.  I say so because where there is a decree, a party has many ways of enforcing that decree.

26. Attachment of debts is one such way of enforcing   a decree.  It is also   known as  Garnishee  proceedings as stipulated  under Order  23 of the Civil Procedure  Rules, where  the decree   holder  applies for  Garnishee  Order  to attach monies  owed to the judgment  debtor   by a third party. This is not what the applicant herein is seeking and even if that were to be the case, it is clear that the accounts in HCMISC 308/2006, have not been taken hence it is not clear whether the respondent will be found to owe the applicant any monies or at all, in that matter, capable of being recovered and or how much would be due to the applicant.

27. It would be  speculative  to consolidate these two  matters  and  order for  accounts  when the debt in this matter is clear whereas  the debt in HC  Miscellaneous  308/2006  is not clear  as it is  subject to some  other legal  process of taking of accounts as ordered by the court. In any event, the applicant can, after the taking of accounts, still recover what is due to him in the HCMISC308 of 2006 as proceeds to recover what is due and owing in this matter.

28. Another   mode of executing decree is by way of notice to show cause particularly where mandamus has already issued.  In this  case, the respondent is now  covered  by the  Government   Proceedings  Act, Cap 40  Laws of Kenya  and therefore  its  property  cannot be attached  in  execution  of decree. In the event of default  of  settlement  after  notice  to show  cause, the applicant  can apply for committal  of the accounting  officer  of the respondent  to civil jail  for a period  not exceeding   six months.  The applicant can also invoke the provisions of section 4 of the Contempt of Court Act No. 46 of 2016 which defines contempt of court to include, in civil proceedings, any willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given by the court. It therefore follows that prayer No.  5 of this application is not one of those modes of execution of decree against the   County Government.

29. The two files are different and proceeded separately.  It would not be appropriate to consolidate them now for convenience of the applicant when the two matters    proceeded separately and when there are other efficacious ways of executing decree for balance of   the decretal sum in the present case.

30. As the money   in HCC Miscellaneous Application  308/2006   is not  readily available for Garnishee, and  as the Garnishee   proceedings  have an  established procedure to be followed under Order 23 of the Civil Procedure Rules, it is  appropriate that the applicant  herein moves the  court in the appropriate  way for recovery of what he is  lawfully  entitled  to and goes  ahead   to move the court   for appropriate orders in the HCC Miscellaneous Application  308/2006, and in this case, separately, the same way he approached the court separately for recovery of monies owed to him.

31. It is for   the above reasons that I do not find the application herein merited and I therefore decline to grant the same.  The application dated 20th February 2013 is hereby dismissed.  As the respondent did not put up any defence to the application, I make no orders as to costs.

Dated, signed and delivered at Nairobi this 7th day of February 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Chelangat h/b for Mr Njuguna for applicant

N/A for Respondent

CA: George