The Commercial Division of the High Court Judge Dr Ginamia Melody Ngwatu has allowed Pramukh Steel Company Limited to proceed with the execution orders to recovery Shs1.4bn against troubled Roko Construction company limited.
Justice Ngwatu dismissed with cost the application for stay of execution filed by Roko Construction based on the affidavit of their director Mark Koehler that the process of recovering the said money was going to affect the running of their company and their appeal in the Court of Appeal.
However, the respondent through Senghani Bhavesg Virji, the Sales and Marketing Manager rubbished the application insisting that it is based on frivolous and vexatious grounds and it was brought in bad faith to frustrate the progress of recovering the said money after they intentionally refused to comply with the directions of the court.
He explained that court directed the parties to meet and reconcile the amount in question because the applicant protested it.
More Read
When he asked for the respondent’s local purchase orders, they were availed but again he refused to pay the said amount of money.
Court further directed that a reconciliation of accounts be conducted by an auditor duly appointed by the High Court Registrar which was done when M/s Patan & Associates Certified Public Accountant upon being appointed by court as a joint auditor.
A report of reconciliation was produced and given to court.
Even though Roko was informed about the appointment of the auditor, they refused to comply and also pay the auditor’s fees.
The fees were paid by the respondent because they wanted the process to be completed in the time given to them by court so that judgement can be delivered,
Roko was directed to refund the said amount paid to the auditor.
The steel company insists that Roko’s grounds of appeal do not disclose any triable issues on appeal noting that there was little chance of them winning the appeal because they didn’t dispute the appointed auditor findings that they received the goods that are subject to the court battle.
He further claimed that Roko abused the court process because it failed to pay security for costs before filing the application for stay, and instead asked court to dismiss it with costs.
The presiding judge explained that her Court has a duty to balance between the interests of the steel company which was the successful litigant and the wishes to execute the decree and the interests of Roko construction which was the unsuccessful litigant.
“In consideration of the submissions made by both counsel for the applicant and the respondent in this application, and the law pertaining to applications for stay of execution pending an appeal, this court is not convinced that the applicant has proved sufficient grounds to warrant a grant of a stay of execution. The applicant has not demonstrated that there is a serious threat of irreparable harm if execution succeeds or that the respondent is impecunious, nor has the applicant demonstrated that the appeal has a reasonable chance of success,” the judge stated.
According to court records, the steel company wanted to recover USD 399,156.050 with interest, general damages and costs of the suit in the Commercial Division of the High Court.
Documents state that the steel company supplied Roko with various steel products worth USD 450,827.850 and Roko only paid USD 51,671.800 leaving a balance of USD 399,156.050 which High Court directed them to pay with 10% interest from 2020 when the case was filed in the Commercial Division of the High Court.
