Mohammed Hassim Pondor & another v Debonair Travel Limited & 2 others [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Milimani Law Courts, Commercial and Tax Division
Category
Civil
Judge(s)
F. Tuyiott
Judgment Date
June 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Mohammed Hassim Pondor & another v Debonair Travel Limited & 2 others [2020] eKLR, highlighting key legal principles and outcomes that shape travel law.

Case Brief: Mohammed Hassim Pondor & another v Debonair Travel Limited & 2 others [2020] eKLR

1. Case Information:
- Name of the Case: Mohammed Hassim Pondor (Suing on behalf of The International Air Transport – IATA Mercantile & General Assurance Company Limited) vs. Debonair Travel Limited & Others
- Case Number: HCCC NO. 130 OF 2006
- Court: High Court of Kenya, Commercial & Tax Division, Milimani Law Courts
- Date Delivered: 9th June 2020
- Category of Law: Civil
- Judge(s): F. Tuyiott
- Country: Kenya

2. Questions Presented:
The court must resolve the following central legal issues:
- Whether the Deputy Registrar erred in ordering the Appellant to pay Kshs. 5,000,000 within 30 days and face civil jail for failure to do so.
- Whether the Appellant demonstrated an inability to pay the decreed amount due to financial hardship.

3. Facts of the Case:
The Plaintiffs, Mohammed Hassim Pondor and The International Air Transport – IATA Mercantile & General Assurance Company Limited, obtained a judgment on 12th March 2008 against the Defendants, Debonair Travel Limited, Kennedy Gichuha Chege, and Berita Kaswii Gichuha, for Kshs. 23,996,791.00 and USD 2,864.52, which remains largely unpaid after twelve years. The Appellant, Kennedy Gichuha Chege, claims to have made substantial payments towards the decree but is unable to pay the full amount due to financial difficulties, including reliance on relatives for support and personal issues such as alcoholism.

4. Procedural History:
Following the judgment, the Plaintiffs initiated Notice to Show Cause proceedings due to non-payment. On 26th July 2019, the Deputy Registrar ordered the Appellant to pay Kshs. 5,000,000 within 30 days, failing which he would be committed to civil jail. The Appellant appealed this decision, citing multiple grounds, including failure to evaluate evidence and consideration of his financial situation.

5. Analysis:
- Rules: The court examined Order 22 Rule 31 of the Civil Procedure Rules, which allows for the arrest and detention of a judgment debtor who is liable to be arrested for non-payment of a decree.
- Case Law: The court referenced the case of Francis L. Oyatsi v Manani, Lilan Company Advocates & another [2015] eKLR, discussing joint and several liability among co-defendants, emphasizing that the decree holder can seek the full amount from any of the defendants.
- Application: The court found that the Deputy Registrar's order could lead to punishing a debtor who is genuinely unable to pay. The court noted the Appellant's claims of financial hardship, which were supported by his affidavits and cross-examination. The Deputy Registrar's ruling was set aside, and the Appellant was ordered to pay Kshs. 500,000 monthly for an initial period of 12 months, with the possibility of adjustment thereafter.

6. Conclusion:
The court partially upheld the appeal, modifying the payment order to monthly installments of Kshs. 500,000 for 12 months, recognizing the Appellant's financial struggles while also considering the interests of the decree holder. The ruling emphasizes the balance between enforcing payment and acknowledging the genuine inability to pay.

7. Dissent:
There were no dissenting opinions noted in the case.

8. Summary:
The High Court of Kenya ruled in favor of the Appellant in part, modifying the Deputy Registrar's order regarding the payment of the decretal sum. The decision underscores the court's approach to balancing the rights of the decree holder with the realities of the debtor's financial incapacity, setting a precedent for future cases involving similar financial hardship claims.

This ruling is significant as it illustrates the court's willingness to consider the personal circumstances of judgment debtors while still ensuring that creditors receive some payment towards their decrees.

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