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JudgmentGIDEON MOSE ONCHWATI VS KENYA OIL CO LTD & ANOTHER9 min read

GIDEON MOSE ONCHWATI VS KENYA OIL CO LTD & ANOTHER

High Court at Milimani High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

CIVIL CASE NO. 140 OF 2008

GIDEON MOSE ONCHWATI……………JUDGMENT DEBTOR/APPLICANT

VERSUS

RUBIS ENERGY KENYA PLC formerly

KENYA OIL COMPANY LIMITED……DECREE HOLDER/1ST DEFENDANT

NATION MEDIA GROUP…………..…DECREE HOLDER/2ND DEFENDANT

RULING

Notice of Motion

  1. By a Notice of Motion application dated 7th March 2025 brought under Order 9 Rules 10 & 11, Order 51 Rule 1 of the Civil Procedure Rules and Article 50 of the Constitution of Kenya, the Applicant, who is the Judgment Debtor, seeks the following orders:
  2. Spent.
  3. Spent.
  4. THAT pending the inter-partes hearing and determination of this instant Application, this Honourable Court be and is hereby pleased to grant temporary ex-parte orders lifting the custodial orders issued against the Judgment Debtor and thereby set him at liberty from civil imprisonment at Industrial Area Remand Prison.
  5. That the Warrants of Arrest dated 12th February 2025 issued against the Judgment Debtor herein be set aside and this Honourable Court be pleased to order for release of the Applicant/Judgment Debtor from custody at Industrial Area Remand Prison.
  6. THAT costs of the application be provided for.
  7. The Application is supported by grounds found on the face of it and in the Supporting Affidavit sworn by the Applicant on 7th March 2025.
  8. It is deposed that the Applicant was arrested, presented at Milimani Law Courts where he was committed to civil jail. He has acknowledged his indebtedness to the 1st Defendant/Decree Holder and contented that the total costs owing to him from the High Court proceedings inclusive of the costs of the Counterclaim against the 1st Defendant/Decree Holder, as well as costs of the dismissed Application for Review on dismissal of the Counter-Claim are more than enough to off-set the 1st Defendant’s/Decree Holder claim against him.
  9. The Applicant blames his former counsel for failing to notify him of the hearing date of the Notice to Show Cause, contending that he was not presented in court when the matter was mentioned and that he was not updated on the Notice to Show Cause; that the Warrants of Arrest were issued on 12th February 2025 when he was not aware of the proceedings and attendance in court that culminated in the issuance of the warrants. He claimed that he is facing predicament due to huge responsibility to his family as well as the burden of off-setting the decree; that the delay in clearing the decree is not intentional and that he is determined to settle the decree.

Replying Affidavit

  1. The Application is opposed through the Replying Affidavit of Moses Onyango, Senior Legal Counsel of the 1st and 2nd Decree Holders (the Respondents) sworn on 7th March 2025. It is the case for the Respondents that the Applicant has not made any proposals on how he intends to settle the decretal amount owed to the Decree Holder despite his admitting the debt which has been outstanding for over four years.
  2. It is deposed that on 30//10/2024, this matter was listed for a Notice to Show Cause on 19/12/2024 in open court at 11.00am; that the said orders were issued in the presence of counsel for the Applicant; that on 19/12/2024, neither the Applicant nor his counsel attended court resulting in the issuance of the warrants of arrest; that the Applicant was arrested on 4/3/2025 and presented in court to show cause why he should not be committed to civil jail; that the Applicant failed to show cause and was thus committed to civil jail; that the Applicant did not raise the issue of non-service he is now raising and that the allegations by the Applicant that he was not aware of the court process are untrue.
  3. It is deposed, further, that the allegations that the decretal amount could be offset by the Bill of Costs dated 21/8/2015 are not merited as the said Bill of Costs has not been taxed and it cannot be ascertained what amount the Bill may be taxed at; that the Bill of Costs does not in any way remove the Applicant’s obligation to settle the decretal amount owed to the Decree Holders; that the Applicant is using all means available to avoid settling the decretal among and that he was deserving of the orders of committal to civil jail.
  4. It was deposed that if this court is inclined to discharge the Applicant from civil jail, it should be on condition that he pays at least 50% of the decretal sum and thereafter provide a suitable proposal on the settlement of the balance of the decretal sum. The deponent termed the application herein as unmerited and urged that it be dismissed with costs.

Oral submissions

  1. The application was argued orally. Mr. Terer, appearing for Mr. Kyalo for the Applicant, submitted that the Applicant was not afforded a chance to appear in court prior to the issuance of the orders committing him to civil jail; that committal to civil jail is draconian and should be the last resort; that this matter has been in court on several dates without serving the Applicant personally with the court dates; that personal liberty is at stake and the Applicant ought to have been served with all relevant dates to attend court.
  2. Counsel submitted that the Applicant has filed a Bill of Costs against the Decree Holder on 24/8/2015; that the claim of Decree Holder against the Applicant who is the Judgment Debtor is for 16 million with accrued interest and the Applicant is contending that the costs owed to the Decree Holder to him will be sufficient to discharge the claim the Decree Holder has against him and that there are solid grounds to grant prayer 3 of the Application.
  3. Counsel sought 30 days liberty from incarceration of the Applicant to enable him move around and source for funds and negotiate how to settle the decretal sum.
  4. In opposition, Ms Onyango for the Decree Holders argued that the Applicant sued and obtained judgment against the Decree Holders which was reduced on appeal after payment had been made; that the Decree Holders filed for refund of the excess amount paid to the Applicant in May 2021 but no payment has been made since that date. It was argued that the Applicant has been changing advocates; that his counsel was in court when Notice to Show Cause was issued on 30/10/2024; that on 1912/2024 the Applicant and counsel were not in court leading to issuance of warrants of arrest; that he was arrested and presented in court on 4/3/2025 together with his counsel but he did not raise the issue of non-service; and that there is no argument made on merit that he was not aware.
  5. It was argued, further, that the Applicant does not make any proposal for payment but is instead raising the issue of Bill of Costs which was filed in 2015 and is yet to be taxed. Counsel for the Decree Holders termed this as another attempt to avoid settling the decretal sum and argued that this application was made in bad faith and ought to be dismissed. Counsel urged that should the court allow this application, then the Applicant should be ordered to pay 50% of the decretal sum and make a proposal on how to settle the balance before he is released from civil jail.
  6. In a rejoinder, Mr. Terer submitted that the warrants of arrest were issued in the absence of the Applicant; that he is a family man with very young children, he has a fixed abode and is not a flight risk and that it does not help any party to keep the Applicant in civil jail.

Analysis and determination

  1. I have read the court records and acquainted myself with the proceedings. I have noted that this Court awarded the Applicant a total of Kshs 15,500,000/= plus costs and interest from the date of judgment until payment in full. The 2nd Decree Holder appealed that judgment and sought stay of execution. In the intervening period and before the appeal was heard and determined, the Applicant executed the decree. The Appeal was determined and a judgment delivered on 11th October 2019 to the effect that the award of general damages amounting to Kshs 3,000,000 was upheld, and a further Kshs 1,500,000 aggravated damages awarded to him. The amount awarded as exemplary damages amounting to Kshs 12,000,000 and Kshs 500,000 awarded in lieu of an apology were set aside.
  2. The Decree holders sought refund of the amounts paid over and above the total of the awards of the Court of Appeal, amounting to Kshs 16,129,272 plus interest at 12% per annum from 15th May 2017 until full payment within 60 days from the date of that order. In default, the 1st Defendant/decree holder was at liberty to execute the order of restitution for recovery of the amount.
  3. Further, the record shows that on 11/12/2024, the Applicant was represented in court. The Deputy Registrar fixed the matter for Notice to Show Cause for hearing on 19/12/2024 in the presence of counsel for the Decree holder and the Judgment Debtor, the Applicant herein. On 19/12/2024, neither the Applicant nor his counsel were present at 11.00am when the matter was to be heard. At 1.04PM, the Deputy Registrar, in the presence of Ms Onyango for the Decree holder, issued warrants of arrest against the Applicant. Court records show that on 5/3/2025 the Applicant was present in court under warrant of arrest, so is his counsel. The Applicant offered to pay Kshs 3 million in two weeks’ time with an offer to give a settlement plan which was rejected by counsel for the Decree holder. The Deputy Registrar committed the Applicant to civil jail for 30 days.
  4. That the Applicant is indebted to the Decree holders is not in doubt nor is it denied.  I have considered the grounds advanced in support of this application and the arguments by the Decree holders. It is apparent that the Applicant has not made any offer on how he plans to settle the owing amount, which is high by any standards. Asking to be released for a few days in order to source for funding is not sufficient, given the amount of time he has had prior to the order committing him to civil jail. He has served a substantial amount of time from the date of committal to civil jail.
  5. After careful consideration of the arguments for and against this application, I am satisfied that the Applicant has not exhibited good will towards the settlement of the decree. It is also not lost to me that the Applicant has not offered any proposals for payment plans. It is not sufficient to seek to be released to enable him to plan how to settle the decree. He must have a plan that can be tabled before the decree holders for discussion.
  6. The Decree holders are validly pursuing recovery of the funds due to them. I am alive to the fact that there are various modes of execution available to the decree holders, which are still open to them. However, it is unrealistic for the Applicant to seek to be released from civil jail without making an acceptable offer on how he intends to settle the decretal sum.
  7. I find the application without merit. I agree with counsel for the decree holder that it is intended to buy the Applicant more time without him making any firm undertaking to settle the decree. This Court, however, is inclined to allowing the Applicant a lifeline in that he shall be released from civil jail on condition that he makes payment of substantial amount acceptable to the Decree holder, and not lower than 30% of the decretal sum, with a firm proposal on how he intends to pay the balance.
  8. The Notice of Motion only succeeds as far as the orders issued above are available to the applicant. Prayer 4 and 5 of the Notice of Motion dated 7th March 2025 are declined. It is so ordered.

Dated, signed and delivered this 31st March 2025.

S. N. MUTUKU

JUDGE

In the presence of:

Mr. Terer holding brief for Mr. Kyalo for the Plaintiff/Applicant (Judgment Debtor)

Ms. Onyango for the Defendants/Respondents (Decree Holders)

    GIDEON MOSE ONCHWATI VS KENYA OIL CO LTD & ANOTHER GIDEON MOSE ONCHWATI VS KENYA OIL CO LTD & ANOTHER