Roman Nyoike Mugacia AND Gathua Munyu AND 3 Others VS Makindi Banks Limited

1. This ruling is on the notice of motion dated 18-11-2024. The motion which is by the 1^st Plaintiff is brought under Orders 40 rule 1 (a) and 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 27 and 63(1)  of the Civil Procedure Act and all other enabling provisions of law.
2. The motion seeks the following residual orders.

3. Costs awarded to the Defendant to be shared by all the five(5) Plaintiffs and not the 1^st Plaintiff alone.

4. The Plaintiffs who are men and women of straw be accorded reasonable and affordable time to settle the costs awarded to the Defendant against them.

5.   Costs of this application be provided for.

1. The motion is based on eleven(11) grounds and is supported by an affidavit sworn by 1^st Plaintiff which has three annexures. The gist of the entire motion is as follows. One, the Defendant was awarded costs of Kshs.  378,790 against all the Plaintiffs. Two, the Defendant has declared openly that he wishes to recover all the costs from the 1^st Plaintiff  in order to teach him a lesson for having been the ring leader of the other Plaintiffs in this case. Three, true to his word, the Defendant has only been pursuing the 1^st Plaintiff and excusing the other Plaintiffs. The only property  that has been proclaimed belongs to the 1^st Plaintiff. Four, the proclaimed property includes two cows which are the only source of income for the Plaintiff as he is at 83 year old man. Finally it is unjust to attach property belonging to one Plaintiff when the costs were awarded all the five Plaintiffs jointly and severally.
2. The motion though served upon counsel for the Defendant is not opposed. No replying affidavit or grounds of opposition were ever  filed by the Defendant.
3. I have considered the motion in its entirety including the grounds, affidavit in support and annexures. I find that the motion has merit. It is not fair or just to execute against one Plaintiff when the decree is against all of them. I  direct that the decretal amount be paid on a pro rata basis so that each Plaintiff pays Kshs. 75,758/=  (Seventy five thousand, seven hundred and fifty eight.)  Secondly, I direct that the decretal sum be paid within a period of 9 months.

The motion is therefore allowed in terms of prayers 3 and 4.

Costs in the cause.

It is so ordered.

Dated, signed and Delivered virtually at Murang’a  this  6^th  day of  May, 2025.

          M.N. GICHERU

                 JUDGE.

Delivered online in the presence of; -

Court Assistant – Mwangi Njonjo

Plaintiff’s counsel – Mr Kimani  holding brief

Defendant’s counsel – Absent