Case ID:168235

Tumaini Transport Services Limited v Siyama Company Limited & another [2020] eKLR

Case Metadata

Case Number:

Civil Suit 100 of 2014

Parties:

Tumaini Transport Services Limited v Siyama Company Limited & Co-operative Bank of Kenya Limited

Date Delivered:

25 Nov 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Tumaini Transport Services Limited v Siyama Company Limited & another [2020] eKLR

Advocates:

Mr. Kongere for the 2nd Defendant/Application

Court Division:

Civil

County:

Mombasa

Advocates:

Mr. Kongere for the 2nd Defendant/Application

Case Outcome:

Application allowed with costs

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL SUIT NO.100 OF 2014

TUMAINI TRANSPORT SERVICES LIMITED.............................PLAINTIFF

VERSUS

SIYAMA COMPANY LIMITED.............................................1

ST

DEFENDANT

CO-OPERATIVE BANK OF KENYA LIMITED.................2

ND

DEFENDANT

RULING

1. By a

Notice of Motion

application dated

20

th

April, 2018

, the 2

nd

Defendant seeks the following orders from the court:-

a) The Honourable Court be pleased to grant Leave to the 2

nd

Defendant/Applicant to execute the Decree dated 2

nd

March, 2017 before the ascertainment of costs payable on the Counter-claim;

b) That costs of this application be awarded to the 2

nd

Defendant/Applicant to be borne by the Plaintiff

2. The application is brought pursuant to the provisions of

Sections 1A, 1B, 3, 3A

and

94 all

of the

Civil Procedure Act, Cap 21

and

Order 51 Rule 1

of the

Civil Procedure Rules, 2010

. It is supported by the grounds on its face and the

Affidavit

of

Lawrence Karanja

, the 2

nd

Defendant’s

Legal Officer

sworn on

20

th

April, 2018

.

3. The 2

nd

Defendant/Applicant’s case is that it filed a

Statement of Defence

and

Counter-claim

on

20

th

January, 2016

which was served on the Plaintiff on

10

th

February, 2016

. Despite being served, the Plaintiff never filed a defence to the Counter-claim consequence thereof the court on

2

nd

March, 2017

entered

Judgment

on request for sum of

Kshs.6,422,256.50

in favour of the Defendant.

4. The 2

nd

Defendant further avers that it notified the Plaintiff of the entry of

Judgment

on

8

th

March, 2017

and requested the payment of the decretal sum but up to date the Plaintiff has never settled the amount awarded in the Judgment. The 2

nd

Defendant/Applicant is also of the view that the Plaintiff has lost interest in prosecuting its case for the reason that the Plaintiff has failed to prosecute its application dated

17

th

June, 2015

in which it was seeking to amend the

Plaint

even after numerous invitations by the 2

nd

Defendant to have the application fixed for hearing.

5. It is the 2

nd

Defendant’s case that it is extremely prejudiced by non-satisfaction of the

Decree

and the

Judgment

of

Kshs.6,422,256.50

awarded in the

Counter-claim

is accruing interest.

6. Finally, the 2

nd

Defendant is apprehensive that it may not be able to recover the sum awarded unless it is allowed to execute the

Decree

immediately and is willing to forego the costs of the

Counter-claim

if it is the only impediment to its right to execute the

Decree

.

7. At the hearing of the application,

Mr. Kongere

, Counsel for the 2

nd

Defendant/Application notified the court that the application has never been responded to having served the Plaintiff in

2018.

The learned Counsel further submitted that the court can exercise its discretionary power under

Section 94

of the

Civil Procedure Act

to grant the Orders being sought.

Analysis and Determination

8. I have considered the application and the Affidavit deponed in support thereof. I have also taken into account the oral submissions by

Mr. Kongere,

the Applicant’s Counsel. The 2

nd

Defendant/Decree Holder seeks Leave to execute the

Decree

dated

2

nd

March, 2017

against the Plaintiff pending determination of the issue of costs. That

Judgment

was for the undefended sum of

Kshs.6,422,256.50

in the

Counter-claim

.

9. Execution of a Decree of the High Court before costs are ascertained is provided for under Section 94 of the Civil Procedure Act, (Cap 21). The provision states that:-

“Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs, and as to so much thereof as relates to the costs that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation”

.

10. There being no

Grounds of Opposition

or

Replying Affidavit

filed in response to the application, the only condition precedent to exercise of the discretion conferred by

Section 94

, above, is that the

Decree

must have been passed in the court’s exercise of its original civil jurisdiction.

11.

Section 2

of the

Civil Procedure Act

defines a

Decree

to be either preliminary or final. The

Decree

sought to be executed herein is obviously preliminary as there is an outstanding claim by the Plaintiff.

12.. From the matters deponed to in the

Supporting Affidavit

, which are uncontroverted, I consider that it is necessary that the preliminary

Decree

passed on

2

nd

March, 2017

herein be executed before settlement of the rest of the claim and the issue of costs. I will thus allow the application with costs.

It is so ordered.

DATED, SIGNED, and DELIVERED at MOMBASA on this 25

th

day of November, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the

COVID-19

pandemic and in light of the directions issued by His Lordship the Chief Justice on

15

th

March 2020,

this Ruling has been delivered to the parties online with their consent. They have waived compliance with

Order 21 Rule 1

of the Civil Procedure Rules, which requires that all Judgments and Rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE