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Nyali MP Mohamed Ali has called off the public auction of Brookside Dairy cows and a cooling plant after they chose to settle an outstanding debt of Sh579, 126 arising from a defamation case.
The milk processing company has drawn a cheque of Sh579,126 towards payment of the figure stated in a proclamation note dated July 3.
In a letter addressed to Ali’s Advocate Adrian Kamotho, Desterio Oyatsi who represents the firm states “We note that in terms of the proclamation served upon our client by the court broker, the period for payment expires today. As a matter of abundant caution, and in the event exparte orders are not granted, we hereby enclose our cheque towards payment of the figure in the proclamation note, “
Brookside on Tuesday urgently rushed to court under a fresh application to stop auctioneers from seizing their cows and other assets over the debt.
The company through Lawyer Desterio Oyatsi said it is an abuse of court process for Nyali MP Mohammed Ali to initiate execution proceedings against them based on a certificate of costs that he allegedly unlawfully extracted contrary to the law.
Oyatsi in the court papers said MP Mohamed Ali with full knowledge that his bill of costs has not been finalized and conclusively taxed has unlawfully commenced execution proceedings against them to recover costs without a certificate of taxation.
The court on July 3 allowed the MP to instruct auctioneers to attach Brookside assets over the debt.
The monies arose from costs awarded to Ali by the court in 2021 after he won a defamation suit filed against him by the milk processing company.
Brookside had filed the case in court accusing Ali of defaming them. Justice Hedwig Ong’undi however struck out the suit saying it was filed in the wrong forum and awarded Ali costs.
The costs have not been paid which resulted in Ali obtaining a warrant of sale and attachment of movable properties issued in July by the court.
The document okays the execution of the auction to subsequently recover the amount owed.
What’s at stake is 40 dairy cows worth Sh150,000, a cooling plant valued at Sh400,000 in Gatundu South, and printers worth Sh14,000 among other items.
The items are listed in a proclamation note dated July 4, 2023.
But Brookside in its fresh application claims Ali deliberately and unlawfully extracted a certificate of costs dated May 23 this year which he knows or ought to know is ineffective.
“The execution proceedings and proclamation are a fraud and a bluff practiced on the court and us by the MP to defeat the law,”
Destrio claims the execution and proclamation originated from a certificate of costs dated May 23 which he claims was extracted by Ali illegally.
Consequently, he sought to have the court grant an order suspending the execution proceedings against Brookside by Ali.
Also sought was an order restraining M/s Fisra Auctioneers from taking any further action against Brookside in relation to the proclamation dated July 4 this year.
A further order sought is the quashing of the execution proceedings by Ali against them including warrants of attachment and sale.
Kamotho in a letter to Fisra Auctioneers instructed them to attach and sell the company’s assets through public auction and recover the monies owed.
The auction will now not take place owing to the settlement of the debt. BY THE STAR