DR. EDWARD IKINYA MAINA VS AERONAUTICAL SOCIETY OF KENYA & ANOTHER DR. EDWARD IKINYA MAINA VS AERONAUTICAL SOCIETY OF KENYA & ANOTHER

The plaintiff applicant in this matter was given a judgment in his favor by the Learned Honorable Lady Justice L. Njuguna on 15^th October 2020 for the sum of Kshs.4,500,00 together with costs of the suit.
Following the judgment the plaintiff filed a bill of costs which was taxed by the taxing master of the court and he was awarded Kshs. 404,415 as the costs recoverable from the judgment debtors.
The judgments in this case was entered against the defendants jointly and severally thus each one of them was under a legal obligation to settle the same.
The plaintiff informed this court that the judgment is still due and owing to date.
The plaintiff by way of a notice to Show cause issued against the 2^nd defendants dated 5^th October 2023 moved the court to have the 2^nd defendant appear before the court on 2^nd November 2023 in person or by an advocate to show cause, if any, why he should not be committed to civil jail.
The amount due is said to be Kshs.6,474,275 due to the interest that has accrued over time.
By way of an affidavit dated 27^th October 2023 sworn by Paul Ndegwa Wandaka, a process server of this court, the 2^nd defendant Dr. Faustine Ondore ( Judgment debtor) is said to have been served with a notice to show cause on the 17^th October 2023 at the Technical University of Kenya next to City Square post office.
The 2^nd defendant accepted service of the Notice and immediately instructed the firm of E.N NAMUDE ASSOCIATES & ADVOCATES to take over the conduct of the matter on his behalf and the state farm filed a Notice of change of advocates dated 1^st November 2023.
The matter came up before the court severally but on the 9^th May 2024 Honorable S. MOTARI Deputy Registrar gave directions that the matter be placed before any of the judges who were to undertake the RRI organized by the court and that is how the matter found its way to this court.
On 26^th June 2024 counsel for the defendant Mr. Kariuki appeared but there was no representative for the plaintiff.
Mr. KARIUKI informed the court that parties were in the process of negotiating the matter thus he requested for a mention date in two months to allow them settle the debt.
This court granted the defendants up to 3^rd October 2024 allow parties to negotiate and appear on that date to record settlement.
On 3rd October 2024 Mr. Gathara appeared for the plaintiff and Mr. Kariuki for the defendants.
On that day Mr. Gathara informed this court that the defendant went to sleep after the judgment even after making a proposal to settle the figure in installments of Kshs.100,000 per month which according to Mr. Gathara would have taken the defendant at least 50 months to settle the claim.
According to Mr. Gathara the defendants were not serious and he therefore applied to have the 2^nd defendant committed to civil jail since the 1^st defendant is an institution and cannot be committed.
Mr. Kariuki on his part submitted that the 1^st defendant does not hold property in its own name and that most of its members had left the organization.
Mr. Kariuki further indicated that the members were to conduct a fundraiser to settle the debt and that informed the proposal they made to the plaintiff.
Counsel went further to state that the plaintiff had demanded of them to pay the full decretal amount and his clients were in the process of trying to collect a lump sum.
Mr. Gathara insisted on the 2^nd defendant being committed to civil jail.
The court directed the plaintiff to file the necessary application and the 2^nd defendant was allowed to file an affidavit in answer to the application for committal to civil jail.
The matter came up before this court on the 19^th December 2024 and counsel for the plaintiff indicated to the court that they had complied with the courts orders of 3^rd October 2024 and in response the 2^nd defendant had filed an affidavit in which he simply explained his inability to pay.
Counsel for the plaintiff pleaded with this court to issue the order committing the 2^nd defendant to civil jail- DR. FAUSTINE ONDORE.
MR. KARIUKI appearing for Dr. Ondore objected to the prayer for committal of his client to civil jail for the reason that the 2^nd defendant had explained vide an affidavit dated 5^th November 2024 that he was going through financial hardship and he was therefore unable to satisfy the debt.
He went further to explain that the 1^st Defendant was his employer and he only served the 1^st Defendant as a chairman.
He went on to state that all the members of the committee that had served together with him had left their institution and that’s why he had resorted to organizing a fundraiser to try and raise funds to settle debt.
According to him his attempt to do so had not yielded any fruits since all the members of the committee had left service of the 1^st Judgment debtor.
He pleaded with the court consider that he is a senior citizen of a 70 years of age and had since left employment with Technical University of Kenya and he has no means to pay.
He stated that he is currently unemployed thus he cannot be able to pay the debt.
The 2^nd Judgment debtor pleaded with this court not to commit him to civil jail and that the plaintiff be advised to pursue other means of execution.
Mr. Kariuki further argued that the 1^st defendant was still operating and the plaintiff should seek to enforce the judgment against the 1^st Judgment debtor before resorting to committing the 2^nd Judgment debtor to civil jail.
Counsel for the 2^nd Judgment debtor conceded that his client had not paid anything since 2020 when the judgment was entered.
Counsel for the plaintiff in response submitted that the judgment was against both defendants jointly and severally thus each one of them is under duty to settle the decree.

MR. GATHARA Submitted that it was unfair for Mr. Karuki to insist on the Decree holder first pursuing the 1^st Judgment debtor yet he, Mr. Kariuki was acting for both Judgment debtors.

MR. GATHARA went on to state that at the time of judgment the 2^nd defendant was still in employment and he did not make any effort to settle the claim a Senior professor of Aeronautical Engineering at Technical University of Kenya.
Counsel went on to submit that a 2^nd defendant was a head of department at Technical University of Kenya thus he was a man of means.
Counsel for the plaintiff argued that Court Decree are not mere papers and the decree holder is entitled in law to recover the sum in issue from both Judgment debtors.
Further, counsel submitted that it was not enough for the 2^nd Judgment debtor to simply say that, I have no money therefore I cannot pay.
This court was invited to consider the affidavit sworn by DR. EDWARD IKINYA MAINA on 20/11/2024 the Decree holder detailing the effort they had made in attempting to recover the debt from the 1^st Judgment debtor.
According to the plaintiff’s counsel all attempts to recover the debt from the 1^st Judgment debtor have proved to be futile.
Counsel urged this court to consider that they had indulged the 2^nd Judgment debtor for over a year and no effort so far has been done to meet the debt.
Counsel for the plaintiff closed his submissions by stating that they had still believed that the 1^st Judgment debtor was able to meet the debt and since Mr Kariuki advocate was acting for both parties he should be able to get the 1^st Judgment debtor settled the sum.
MR. KARIUKI on being asked by the court whether he was acting for both Judgment debtors he emphatically said no and insisted that he was only acting for the 2^nd Judgment debtor.

ANALYSIS AND DETERMINATION

The committee of a Judgment debtor is one of the recognized modes of execution under Section 38 and 40 of the Civil Procedure Rules.
In the case of Innocent G. Ondieki v Julius Nakaya Kabole, Kakamega HC Misc. Civil Application No.13 0f 2018 (2019)eKLR, where the applicant was challenging his committal to civil jail, the court cited the case of Jedida Chepkoech Mutai (Suing as The Legal Representative of the Estate of Julius Kipkorir Mutai (Deceased) vs Cherono Beatrice (2018)eKLR where it was stated that:

‘As I understand it, the general position in law is that the arrest contemplated under section 38 and 40 of the Civil Procedure Act is not unconstitutional. All that is required in proceeding under the two provisions is that there has to be strict adherence to the law. In Jane Wangui Gachoka vs Kenya Commercial Bank Limited [2013] eKLR, the petitioner asked the court to declare sections 38(d) and 40 of the Civil Procedure Act and Order XX1 Rules 32,33 of the Rules which allowed for commitment to civil jail for non-payment of a debt as archaic and unconstitutional. In declining to make the declaratory orders sought by the petitioner, the court stated as follows:

“[33] The deprivation of liberty sanctioned by sections 38 and 40 of the Civil Procedure Act is permissible and is not in violation of either the Constitution or ICCPR. The caveat, however, which has been emphasized in all the cases set out above is that before a person can be committed to civil jail for non-payment of a debt, there must be strict adherence to the procedures laid down in the Civil Procedure Act and Rules, which provide the due process safeguards essential to making limitation of the right to liberty permitted in this case acceptable in a free and democratic society.”

See also Mary Nduku Ndunda vs Attorney General & 4 Others [2016] eKLR.’

14. In the case of Charles Lutta Kasamani v Concord Insurance Co. Ltd. & Deputy Registrar Milimani High Court Commercial and Admiralty Division (2018)eKLR, Mwita J. considered at length the constitutionality or otherwise of sections 38 of the Civil Procedure Act and the relevant rules of the Civil procedure Rules vis a vis section 11 of the ICCPR and held that there was nothing unconstitutional in sections 38 and 40 of the CPA and further that committal to civil jail of one who is able to pay but has refused to do so is lawful and does not amount to violation of rights and fundamental freedoms in the Bill of Rights.

15. Also in the case of Beatrice Wanjiku & Another vs Attorney General & Another (2012)eKLR, Majanja J. while finding that section 38 is consistent with the Bill of Rights held that:

44. An analysis of the provisions of s.38 of the CPA and rules 22 of the Rules and their application demonstrate the following:

a) The process of arrest and detention is not arbitrary. The debtor is given an opportunity to show cause before an order is made by a judicial officer.

b) The Judgment-Creditor can only be committed to civil jail once it is demonstrated that he or she has refused or neglected to pay, is about to abscond or is intent on obstructing or delaying execution of the decree.

c) The burden of proof rests on the judgment-creditor to show prove the elements that are necessary for the arrest and committal of the judgment-debtor.

d) That arrest and committal is the last resort after other modes of execution have failed.

e) There is a right of appeal against the decision of ordering arrest and committal.

The court is only required under the law to afford a Judgment Debtor an opportunity to explain why he has not been able to settle debt.
It is also expected that in the course of offering that explanation a Judgment debtor would also demonstrate the efforts he has made since the date of the entry of judgment to try and settle the debt.
The financial position of a Judgment debtor can only be adequately explained through the filing of an affidavit of means clearly demonstrating the ability or inability of the Judgment debtor to settle the debt.
It is not for the decree holder to justify why the Judgment debtor is able to pay. No, It is the responsibility of a Judgment debtor to tell the court why he cannot pay but it is not enough simply to say that since he is unemployed he therefore has no means to pay.
The streets are full of men and women who are not in any formal employment and they bear wealth that is beyond the reach and imagination of most formally employed persons.
The 2^nd Judgment debtor have also not satisfactorily explained why during the period he was in employment he never made any effort to pay even a penny as a show of goodwill on his part to settle the debt.
It would have been perfectly understandable if the 2^nd Judgment debtor told this court that since he has ceased being in employment, he is unable to continue servicing the debt.
He should have at least demonstrated that he was all along willing to pay and that he indeed paid the debt up to the date he left employment.
The affidavit of the 2^nd Judgment Debtor only serves the purpose of projecting him as an unemployed individual who for that reason cannot pay his debts.
If the courts were to accept the position presented by the 2^nd Judgment debtor that since he is not in formal employment, he should be excused from his debt responsibilities that would set a very dangerous precedent.
The omission by the 2^ndJudgment debtor to make any single payment speaks volumes about him. In fact, it would appear to this court that the 2^nd Judgment debtor never took the judgment of the court seriously and to him it did not mean anything.
Court judgements are not issued in vain the judgment in this case having been entered jointly and severally as against the 1^st and 2^nd defendants, each one of them bore the responsibility to settle the debt.
The court has considered the affidavit of the plaintiff and that of the 2^nd defendant Judgment debtor.
The court is persuaded that the 2(two) Judgment debtors have had ample time and opportunity to settle the debt but as urged by Mr.Gathara they took the matter lightly and went to sleep.
The decree holder is entitled to the fruits of his judgment and is at liberty to avail himself any of the remedies provided for in law to recover the same.
The provisions of Order XXII Rule 18 having been fully complied with this court finds that the 2^nd Judgment debtor has not shown sufficient cause why he should not be committed to civil jail.
Consequently, this court hereby orders that the 2^nd Judgment debtor be and is hereby committed to civil jail for a period of six (6) months and in the event that he settles the debt before the expiry of the said period, Counsel for either party shall be at liberty to move this court for the issuance of a release order.
The plaintiff shall meet the necessary costs of his stay at the prison which shall be satisfied by the Judgment debtor as part of the decree.
It is so ordered.

DR. EDWARD IKINYA MAINA VS AERONAUTICAL SOCIETY OF KENYA & ANOTHER

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