On January 24, 2018 in Civil Suit No 222 of 2016 at the Commercial and Admiralty division of Milimani Commercial courts a judgment was issued against Everlyne Jeniffer Mwakha by Justice John Onguto. The defendant had been sued by Clarence Benard Amuhoyi who had pleaded with the court to compel the defendant to settle and refund him the sum of Kshs 35, 836,810.20 plus interest at a contracted rate of 5% per month.
However, the defendant was ordered to pay a sum of Ksh 20 million to the plaintiff after stating that it was what she could raise. Consequently, 90 days was set by the court as the stay of execution of the decree.
Nonetheless, to date the plaintiff is yet to recover the sum. He deposed that the defendant is connected with powerful people. Moreover, instead of coming up with a reasonable plan on how she would settle the debt, the defendant reverted to use of delay tactics such that on numerous court hearings sessions she failed to appear due to “illness and awaiting of a surgical operation.”
Hence, this raises up the question as to what extent are court orders enforceable. To note is that a person who has failed to honor a decree in a civil case will be summoned by the court through a Notice to show cause. This hearing would entail explaining how the money will be raised and if not, then why they should not be committed to a civil jail.
Section 38 of the Civil Procedure Act states that a decree for payment of money will only be executed by delivery of any property specifically decreed, attachment of property and by sale without attachment of any property, attachment of debts, arrest and detention in any prison or by appointing a receiver.
A judgment-debtor will only be detained in prison after being afforded with an opportunity to show cause as to why they should not be convicted to a Civil Jail. The judgment-debtor will be imprisoned if the court is satisfied that the judgement-debtor will obstruct execution of the decree or will likely to abscond the local limits of the jurisdiction of the courts. The judgment-debtor will also be convicted if the court notices that they have committed bad faith in relation to property that they own through inter alia dishonestly transferring it, concealing or removing part of their property.
As for example, in 2019, Tony Mochama won a defamation case against Brenda Wambui Mwangi and Shailja Patel. However, the decree is yet to be executed as the two are beyond the local limits of the jurisdiction of the courts.
Due to frustration over recovering the money and threats, Clarence Benard Amuhoyi filed a criminal case. The complainant has accused Everlyne Jeniffer Mwakha of fraudulently obtaining Ksh 18.7 million from him through false pretense as contrary to Section 313 as read with Section 312 of the Penal Code. The incident reportedly happened on dates between January 17, 2014 and August 15, 2014 at Nairobi County.
Intricacies on this case reveal that the complainant was introduced to the woman by his cousin. The complainant had had been out of the country for 14 years and was looking to settle back and invest. The accused falsely pretended that she was in a position to incorporate the complainant into a business that would benefit him with good income, a fact that she knew to be false. Consequently she defrauded Ksh 18.7 million from complainant.
In the case heard on December 10,2019 before Senior Principal Magistrate the accused was freed on a cash bail of Ksh 100,000 or an alternative bond of Ksh 200,000.
However, the complainant refused an application by the accused lawyer to postpone the hearing stating that he wished the accused to be investigated as whether she was sick and awaiting surgery.
Nonetheless, Senior Principal Magistrate, Martha Mutuku obliged an adjourned the case. A further hearing date was set to March 3,2020.
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