By The Weekly Vision
Court of Appeal judges Asike Makhandia, K. M’Inoti, and Mbumbi Ngugi have dismissed an appeal lodged by East African Portland Cement and allowed auctioneers to attach properties over Ksh. 1,311,585,364.80 it has failed to pay. In a ruling dated November 24, 2023, the judges noted, “The applicant has previously obtained orders from this Court on terms, which it has not bothered to fulfill. It has also voluntarily entered into a consent order with the respondents, which again has not been fulfilled. For those reasons, we are satisfied that the conduct of the applicant disentitles it to an equitable remedy.”
The Kenya Chemical & Allied Workers Union had sued EAPC on behalf of Juliet Chepchumba Tuwot and 227, Joseph Karithi Mithika and 219 others, and Morris Muteti Kawinzi. The court had made a ruling and allowed the respondents to execute against the applicant a decree in their favour for Ksh. 1,311,585,364.80. According to the said ruling, the applicant’s bank accounts were garnished, and 24 titles to its properties were placed under prohibition.
The judge noted that when the respondent attempted to execute the decree on September 14, 2018, EAPC sought and obtained a conditional order of stay of execution in this Court. The substantive conditions for the stay of execution were that: the applicant must deposit in court or provide a bank guarantee of Ksh. 350,000,000.00 within 30 days, failing which the orders of stay were to lapse; However, EAPC did not comply with any of the above conditions. Further, on January 13, 2020, EAPC entered into a consent order with the respondents for the settlement of the decretal sum.
The key parts of the consent order required EAPC to pay the respondents Ksh. 90 million on or before January 31, 2020. Thereafter, the parties were to meet on February 5, 2020, and agree on modalities for payment of the balance of the decretal amount, which was to be settled from the sale of two properties belonging to EAPC. If the said properties were not sold, the applicant undertook to make reasonable endeavours to secure funds to pay the balance of the decretal sum.
By clause 9 of the consent order, the parties agreed that should the applicant be in default, the respondents were at liberty to execute for the balance of the decretal sum. It is common ground that, as regards the consent order, the applicant complied only with the payment of Ksh. 90 million.
The judgment reads in part, “Ultimately, we find no merit in the applicant’s Notice of Motion dated May 31, 2022, and the same is hereby dismissed with costs to the respondents. It is so ordered.”