After filmmaker David ‘Tosh’ Gitonga refused to honour to pay German film editor Christian Kramer €4,000 (Sh678,403) for his work on the “Volume” pilot from a WhatsApp agreement three years ago, and even moved to the High Court to stop an auctioneer’s intervention in October 2024, he never imagined the result would be a Sh1.1 million debt, as his woes in court deepen.
Tosh returned to the Small Claims Court seeking a lifeline. He asked to be allowed to clear the Sh1.1 million debt in monthly instalments of Sh10,000 rather than pay the amount in one lump sum.
Instead, last week the court rejected his plea and ordered him to pay a further Sh7,000 in costs, dealing another blow to the filmmaker in a three-year dispute.
The filmmaker had told the court that he was facing severe financial difficulties that had left him unable to settle the debt in a lump sum. He attributed his financial position to diminished business operations and prevailing economic conditions.
Filmmaker Tosh Gitonga.
Photo credit: Pool
But Kramer opposed the application, accusing Tosh of “being economical with the truth”.
The German editor told the Small Claims Court that Tosh had released a new film and a television series that had recently premiered on Citizen TV, contradicting his claims of financial hardship.
In considering the submissions by both parties, Adjudicator Stella Wanjiru faulted Tosh for failing to provide sufficient evidence to support his claim that he was unable to settle the debt in full.
“My view is, an applicant who wishes a court to exercise its discretion and order payment of a decretal sum by way of installments must be very candid with the court. Such an applicant must present to the court sufficient material to show that he/she is a person of no means, that whatever income she/he has is lawfully committed elsewhere,” the adjudicator stated.
She added: “The duty of the applicant (Tosh) therefore was to demonstrate that he was not in a position to settle the decree in a lump sum. The applicant did not demonstrate their monthly income, did not give their assets and liabilities. The applicant asked the court to allow payment in instalments because they were facing financial difficulties or their financial situation; however, nothing was placed on record to support this assertion.”
“In my considered opinion, the applicant has not met the threshold enough for the court to exercise its discretion, the upshot of which is that the application is dismissed with costs of Sh7,000,” the adjudicator stated.
Tosh’s legal troubles trace back to a WhatsApp conversation sometime between 2022 and 2023, when he engaged Kramer to provide services that helped him secure undisclosed Netflix funding for his series Volume. The series would later earn three nominations at the prestigious Zanzibar International Film Festival in 2024.
A payment dispute subsequently arose between the two filmmakers, with Kramer, who worked on the Volume pilot, accusing Tosh of refusing to honour their agreement.
The two had agreed that Kramer would be paid €4,000 (Sh678,403) for his work, prompting him to move to the Small Claims Court in 2023 to recover the money.
At the Small Claims Court, Tosh disputed Kramer’s claim, arguing that there was no formal written contract between them that could be considered legally binding or sufficient to compel him to make the payment.
The court, however, ruled in Kramer’s favour, finding that the WhatsApp exchanges between the two filmmakers amounted to a legally binding agreement.
Unhappy with the decision, Tosh appealed to the High Court, arguing, among other things, that the lower court had erred in treating their WhatsApp exchanges as a contract.
He further argued that the adjudicator had ignored and/or failed to consider his testimony and evidence, instead placing reliance on the evidence and material presented by Kramer, resulting in what he described as a manifestly unfair decision.
