Wathuku Ngure Deceased & another v Githinji Ngure & another [2009] KEHC 2911 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Succession Cause 60 of 1997

WATHUKU NGURE .............................. DECEASED

AND

CHARLES WANJOHI WATHUKU .......... PETITIONER

VERSUS

GITHINJI NGURE ............................... 1ST OBJECTOR

CHARLES MWANGI GITUNDU ........ 2ND OBJECTOR

R U L I N G

On 26th February 2009, I held that the respondents were in contempt of court orders and invited them to show cause why they should not be punished.  Of course anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise.  In a bid to purge their contempt though, the respondents have made efforts to substantially comply with the said orders of the court issued on 19th October 2002 and 16th August 2002 respectively; save for Massey Ferguson earth mover KDT and element of interest on Kshs.4,526,740/=.

With regard to the earth mover, the ministry of works certified it as being beyond repairs.  However it was valued at Kshs.4,074,899/= inclusive of the salvage value.  The applicant also claimed Kshs.9,816,915/= being the income that the earth mover should have earned over the period at the rate of Kshs.3,063/= per hour as per the ministry of works valuation.

My observations as regards these claims are that the claim for the value of the earth mover is well founded.  When the respondents took away the same from the estate of the deceased, it was in a perfect working condition.  Due to their negligence, however, the condition of the earth mover has deteriorated such that it is now beyond repair and or salvage.  Much as the respondents have claimed that they have since managed to repair it and that it is now in a perfect working condition, I am unable to agree with them.  The report from the ministry of works speaks for itself. The earth mover is beyond repair.  I do not see how then the respondents would have managed to effectively repair it.  In my view the respondents should pay Kshs.4,074,899/= being the value of the earth mover.

As for Kshs.9,816,915/= being the amount that the earth mover would have generated over the period, I am not inclined to approve the whole claim purely because it is speculative.  Yes, the ministry of works indicated that such machine would have earned the owner Kshs.3,063/= per hour over the period.  However knowing the vagaries of life, it cannot be assumed that the earth mover would have been in a perfect working condition throughout.  It could as well have broken down or indeed there may have been occasions when there would be no work at all.  Bearing in mind the foregoing I would only allow half of the aforesaid claim meaning Kshs.4,908,457/50.

With regard to the interest that would have accrued on Kshs.4,526,740/=.  I have looked at the order made on 16th August 2002 by Juma J and it is silent on the question of interest.  Accordingly I would disallow the same.

The upshot of all that I have been saying is that to fully purge their contempt, the respondents are still expected to pay to the estate of the deceased Kshs.4,074,899/= being the value of the earth mover and a further Kshs.4,908,457/50 being the income it would otherwise have generated over the years making a grand total of Kshs.8,983,356/=.  This amount should be paid forthwith by the respondents jointly and severally failing which their known properties shall be sequestrated and sold to recover the aforesaid amount.  And for their blatant and naked disobedience of valid court orders each of the respondents is further fined Kshs.20,000/= in default to serve 3 months imprisonment each.

Dated and delivered at Nyeri this 3rd day of June 2009

M. S. A. MAKHANDIA

JUDGE