Wambati Simiyu Merit v Music Copyright Society of Kenya Limited

c) Kshs. 3,000,000 on or before 20th November 2022 and d) Kshs.2,963,098 on or before 20th November, 2023. e) MCSK will assess/remit/refund the money deducted from the Petitioners’ salary towards his financial obligations to his Sacco, Family Bank, and EFC Bank and/or write to the institutions to make arrangement towards settlement of the same. f) Both parties agree that party and party costs be assessed by the court. The affiant depones that whereas the Respondent paid Kshs.7,500,000, a balance of Kshs.23,598,801.80 was outstanding as follows: a) Balance of decretal sum 16,163,098. b) Refund of money deducted from Sacco, Family Bank and EFC Bank Kshs.7,023,188. c) Costs awarded Kshs.412,515. That the Respondent had declined payment of the decretal sum, there were judgments and rulings against the applicant, which he was unable to fulfil and the Respondent stood to suffer no prejudice. Vide a Replying Affidavit sworn by Richard Sereti on 15 th July 2026, in Opposition to the Notice of Motion, the affiant deponed that Settlement Agreement provides that the Agreement fully and finally settle any claim that Mr. Merit Wambati Simiyu has towards/against MSCK” and the decretal sum was negotiated and reduced to Kshs.14,963,038 payable in four (4) instalments and a total of Kshs.7,500,000 had already been paid and the correct ELRC NAIROBI -PET 111 OF 2018 -RUL 2

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outstanding balance was Kshs.7,463,098 as opposed to Kshs.16,163,098 as deponed by the applicant. That the delayed payment was on account of orders issued in ELRC Misc E103 of 2022 Nguu & Co. Advocates v Merit Wambati Simiyu and Music Copyright Society of Kenya (MCSK) and another restraining the Respondent from remitting money to the Petitioner. That the Respondent’s license to collect royalties was revoked by the Kenya Copyright Board in COPTA E003 of 2025, a decision it was appealing and thus unable to generate income to satisfy the Agreement dated 24th May 2022 and owing to wrangles within the Respondent’s organization its bank accounts had been garnished and/or frozen as well as attachment and execution of its movable assets. That the applicant could not revert to or claim the original decretal sum while simultaneously seeking adoption of the settlement agreement which extinguished the original sum. That the sum of Kshs.7,028188 was unsubstantiated or supported by a statement of computation and on 3 rd February 2023 the parties agreed that there would be no execution in respect of Part and Party Costs. That it would unjust enrichment of the applicant to seek adoption of the Settlement Agreement and claim the decretal sum having inter alia slept on his right on prosecuting the application during which time the Respondent experienced adverse orders and ELRC NAIROBI -PET 111 OF 2018 -RUL 3

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executions which disabled it from satisfying the terms of the Agreement. Applicant’s Submissions As to whether the Settlement Agreement ought be adopted as an order of the court, reliance was placed on the sentiments of the Supreme Court in Asanyo & 3 others v Attorney General (2020) KESC 62 (KLR) that a consent by parties becomes an order of the court once it is formally adopted by the court. Counsel submitted that after paying Kshs.7,500,000.00 the Respondent obligations abandoned communicated. its since 2023 or Counsel submitted that since the Respondent failed to pay the amount as agreed, the balance of the decretal sum became payable automatically and the applicant had the right to demand Kshs.23,598,801 as the agreement did not reduce or waive the decretal sum or that the balance be forfeited. According to Counsel, the applicant could not compromise Kshs.8,700,000.00 and not state so in the agreement citing the rendition of the court in Mbonika v G4S Security Services (K) Ltd (2023) KEELRC 529 (KLR). Counsel further urged that as for the alleged legal handles, the order issued in ELRC MISC E103 of 2022 was vacated and payments made in 2023. That revocation of licence was in 2025 yet the amount ought to have been cleared by 20th February 2023 the license issued was an excuse no intention had been demonstrated by the respondent to settle the ELRC NAIROBI -PET 111 OF 2018 -RUL 4

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amount and did not take advantage of the applicants delay in executing the application. Reliance was placed on the decision in Martin Wainaina Gatiba v Kemption Investoment & 2 others (2018) KEHC 101 46 (KLR) and Kaurunga v Kaaria (2026) KEELRC 4563 (KLR), on the need to honour contractual obligations. Also cited was the rendition of the Court of Appeal in centurion Engineer & Builders Ltd v Kenya Bureau of Standards (2023) KECA 1289 (KLR) for the proposition that parties are bound by the terms and conditions of the contracts they enter into. According to the applicant, the sum of Kshs.7,023,188 was deducted from the applicant’s salary and had to be remitted to the Sacco, Family Bank and CFC Bank. That last paragraph of the applicant’s submissions is ambiguous as it read. “It is not right and in the interest of justice that the agreement is adopted as an order of this court and the application allowed as prayed to enable the applicant proceed with execution. Respondent’s Submissions On delay in presenting his application, the Respondent cited the decision in Ivita v Kyumbu (1984) KLR 441, Mwangi v Garissa & another (2025) KEELRC 103 (KLR) and Mobile Kitale Service Station v Mobil Oil Kenya Ltd & another (2004) to submit that the delay ought to be weighed against the applicant as ELRC NAIROBI -PET 111 OF 2018 -RUL 5

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in the meantime, the Respondent’s financial position deteriorated rendering it unable to meet its obligations, through no fault of its own. As to whether the Court should interfere with the settlement agreement, counsel placed reliance on decisions on consent judgment yet the settlement Agreement dated 24 th May 2022 had not been adopted an order of the court. Counsel submitted that the applicant could not approbate and reprobate by seeking adoption of the settlement agreement and contemporaneously varying its terms, placing reliance on Republic v Institute of Certified Public Secretaries of Kenya Ex Parte Mundia Njeru Geteria (2010) KEHC 4103 (KLR) and Seraphine Ndinda Kitaka & 2 others v Praxedes Nzisa Wambua ^ 6 others (2016) KECA 765 (KLR). Counsel submitted that the applicant was estopped from executing upon Kshs.412,515 as Party and Party costs by dint of the agreement dated 3rd February 2023. As to whether the Respondent can satisfy the balance owed to the applicant, counsel submitted that owing to the fact that respondent was restrained from remitting monies to the applicant in ELRC MISC E103 of 2022, deprived of its source of revenue in COPTA E003 of 2025 and HCCTA No.077 of 2013, and freezing of its accounts and was thus unable to meet its financial obligations and the non-payment was neither willful nor contumacious. Analysis ELRC NAIROBI -PET 111 OF 2018 -RUL 6

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It is common ground that the court entered judgment in favour of the applicant in the sum of Kshs.23,663,098.92 on 23 rd September 2021 together with costs and interest. It is equally not in dispute that the parties entered into a Settlement Agreement dated 24th May 2022 and they agreed to discontinue execution or fresh execution and the Respondent was to withdraw an application it had made. The Respondent undertook to pay the sum of Kshs.14,963.098 in four (4) instalments of unequal amounts and the last was payable on or before 20th February 2023. It also agreed to assess/remit/refund money deducted from the Petitioner’s salary toward his financial obligations in his Sacco, Family Bank and CFC Bank and/or write to the institutions to make arrangements towards settlement of the same. That Party and Party costs be assessed by the court. Clause 6 of the agreement provided that; “This agreement fully and finally settles any claim that Mr Merit Wambati Simiyu has towards/against Mask” Both parties executed the agreement and none has disowned it and both parties desire that the same be adopted by the court belatedly. exceedingly While it is correct to submit that the applicant took long to prosecute his application filed under Certificate of Urgency, which amounts to an abuse of the facility, the delay was indeed in favour of the Respondent on account that it accorded the Respondent time to fulfil its obligations under the agreement and although it paid the sum of Kshs.7,500,000.00 ELRC NAIROBI -PET 111 OF 2018 -RUL 7

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which is substantial, it did not fulfill any other obligation it had contracted to discharge. Notably, ELRC MISC No. E103 of 2022, which temporarily restrained the Respondent from paying monies to the applicant was withdrawn pursuant to a Notice of Withdrawal dated 20 th February 2023 and unless the Respondents bank accounts were under Garnishment, it could pay the other instalments. Similarly, and as correctly submitted by the applicant’s counsel, the decision of the Kenya Copyright Board (KECOBO) vide its letter dated 14th October 2025 was last years event happening long after the Settlement Agreement ought to have been honoured and the Respondent did not disclose the status of the appeal. The freezing of the account’s came in November 2025 and Garnishment in February 2026, as did the warrant of attachment. Earlier on in February 2023, the parties consensually agreed to set aside the Decree dated 23rd September 2021 and warrant of Attachment issued on 23rd January 2023. From the documents on record, the Respondent did not account for the duration between June 2023 to September 2025 or explain why, it could not honour its part of the bargain. By its judgment of 23rd September 2021, the court awarded the applicant the sum of Kshs.23,663,098.92 costs and interest at court rates. The amount awarded was subject to statutory deductions namely, PAYE, SHIF and NSSF among others. ELRC NAIROBI -PET 111 OF 2018 -RUL 8

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The Respondent was additionally to remit or refund all deductions made to the salary but not remitted to the KRA, NHIF, NSSF, SACCO Family Bank and CFC Bank. In his re-amended Petition dated 16th March 2020, the Petitioner quantified the Kshs.3,003,942.00. deducted and unremitted dues at Its is unclear to the court how the amount more than doubled in 3 years. The sum of Kshs.3,003,942 was neither proved nor awarded by the court. The court awarded an omnibus sum, which only the Respondent can easily quantify with precision, hence the court’s direction to remit or refund the same. The sum of Kshs.7,023,188 claimed by the applicant lacks a firm basis for a court to award or sanction. As regards the cost of the award Kshs.412,515 the Decree and warrant of attachment were consensually set aside on 3 rd February 2023 and were not reinstated. Granted that the applicant is still desirous of the court adopting the Settlement Agreement dated 24 May 2022 as its order, its insistence of using the sum of Kshs.23,598,801 as the basis of computation of the amount owed is tantamount to blowing hot and cold. He is simply approbating and reprobating at the same time something the law does not countenance. See Sonko & another v Patel & another (1955) 22 EACA 23, Fursys (Kenya) Ltd v Southern Credit Banking Corporation Ltd (20150 KECA 977 (KLR). ELRC NAIROBI -PET 111 OF 2018 -RUL 9

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In Rejani & another v Rajani & 2 others (2025) KECA 1823 (KLR), the Court of Appeal stated, “To our mind, the applicants are approbating and reprobating, which is an unacceptable conduct. Such conduct was considered in Evans v Bartlam (1937) e ALLER 649 at 652 where Lord Russel of Killowen said: “The doctrine of approbation and reprobation requires for its foundation, inconsistency of conduct, a man, having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit” (See also Behan & Okero Advocates v National Bank of Kenya (2007) eKLR. The Crux of the matter remains how much the Respondent owes the applicant. However, paragraph B of the Settlement Agreement contextualizes the agreement succinctly, thus: “Both Merit Wambati Simiyu and MCSK have been directly engaged in negotiations towards settlement of the above mentioned case as well as the strain in their relationship and want to consider the possibility of working together. Now therefore the parties hereby agree as follows:…” A careful perusal of paragraph 1, 2, 3, 4 and 5 of the Settlement Agreement leave no doubt in the court’s mind that it was intended to resolve the entire suit fully and finally contrary to the applicant’s submissions. The introductory part of the agreement is explicit that the applicant had obtained Kshs.23,663,098.92 in a ELRC judgment PET No. in 111 the of sum 2018, of which constituted the back ground of the negotiations and agreement. ELRC NAIROBI -PET 111 OF 2018 -RUL 10

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In the courts view, the parties did not envision further liability on the part of the Respondent to the applicant after the agreement was implemented fully, assessing/remitting/refunding including monies the Respondent deducted from the applicant’s salary towards his financial obligations to the SACCO, CFC Stanbic Bank and Family Bank and/or write to the institutions to make arrangements towards settlement of the same. Since the parties are still desirous of having the agreement honoured, it is only fair that their wish be granted. Consequently, the Settlement Agreement date 24th May 2022 duly executed by the parties and filed belatedly, be and is hereby adopted as an order of the court. Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 28TH SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. ELRC NAIROBI -PET 111 OF 2018 -RUL 11

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In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC NAIROBI -PET 111 OF 2018 -RUL 12

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