Top Kenyan filmmaker battles auctioneers over Netflix series debt

In July, Mr Kramer got permission from the Magistrate’s court to recover Sh678,403 that the Kenyan filmmaker owed him following a one-year protracted dispute over a Netflix Kenyan project titled ‘Volume’.

The amount had risen to Sh778,084 by last week when the auctioneers paid Primary Pictures a visit having been granted warrants by the magistrate court after Tosh failed to honour its judgment.

On Thursday October 24 , Interfiled Auctioneers served Tosh as he is popularly known, with the Warrants of Attachment and Sale that provided for a 7-day proclamation notice.

The assets attached by the auctioneers from Primary Pictures Ltd office include a four-burner cooker valued at Sh10,000, a microwave valued at Sh2,500, a two-door fridge estimated at Sh20,000, a photocopy machine at Sh50,000, TV set worth h20,000, three seater L-shaped sofa estimated at Sh10,000 and six desktop computers each valued at Sh5,000.

Others are water dispenser (Sh2,500), two executive chairs (each at Sh3,000), two metallic boxes (each at Sh5,000), two wooden cabinets (each estimated at Sh10,000) and 17 office chairs each valued at Sh2,500 among other assets. Interfiled Auctioneers also slapped Tosh with an invoice charge of Sh207,800 for their services.

The filmmaker has, however, been given a lifeline after he moved to the High Court and filed a miscellaneous application seeking stay orders of the judgment by Magistrate Court.

Earlier, on August 5 Justice Christine Meoli sitting at Milimani High Court granted Tosh conditional stay orders which required him to deposit Sh400,000 in court pending determination.

The matter came up for hearing this week on October 24, where Tosh argued that he was unable to deposit the Sh400,000 as earlier directed. Justice Meoli issued fresh orders lowering the amount to Sh200,000.

“Upon hearing the counsel, the court will extend interim orders of stay on condition that the applicant shall deposit into court the sum of Ksh200,000 by close of business on 31st October, 2024,” Justice Meoli gave fresh orders.

Kramer moved to court mid last year suing Tosh for refusing to pay him for his work in developing ‘Volume’ Series which premiered on Netflix on December 2023.

The German accused Tosh of using his expertise to obtain funding for the Volume project from Netflix before the production of the series began.

Tosh had argued his case before the court stating that there was no contract between him and Kramer.

Kramer told the court Tosh contacted him through a phone call and needed him to edit the Volume trailer so that he could use the same to pitch to Netflix for funding of the production.

The two had an agreement with Kramer taking up the job which he worked on, editing it for eight full working days before sending it to South Africa for colour correction to make it fit for purpose and thereafter delivered it to Tosh.

An elated Tosh would then share the good news with Kramer once the project had been approved by Netflix for funding, according to court filings.

But it’s at this point that the Disconnect Director is said to have started being elusive when Kramer demanded for his pay.

Tosh would instead send him on a wild good chase with promises of retaining him on another of his project Disconnect 2. Kramer would tell the court he had suffered losses of time and resources as he pursued Tosh for his dues for several weeks.

In his response, dated July 24, 2023, Tosh told the court he was a stranger to the claims made by the film editor that he had suffered losses.

Tosh maintained that the two did not have a written binding contract between them.

“During the hearing the parties gave their testimonies and subsequently file submissions which I have duly considered. The only issue for determination is whether there was a valid contract between the claimant and the respondent,” Magistrate Barbara Akinyi stated in her judgment.

The magistrate went on to state that she had considered email correspondences, text messages and WhatsApp chats as part of the evidence brought before the court, between Tosh and Kramer, provided by the German in his  sworn affidavit.

“It’s clear from the claimant’s attached screenshots of their conversations on WhatsApp that there was negotiation and an offer from the respondent to the claimant. The respondent approved the final version of the edited trailer and all this complies with the requirements of the contract,” the magistrate noted.

It’s on this basis that she found Tosh at fault.

“Judgment is therefore entered against the respondent in favour of the claimant (Kramer). The respondent to pay the claimant Ksh678,403 and shall have costs and interest from the date of judgment until payment in full,” the magistrate ordered. 

The court also granted Tosh Gitonga 30 days to appeal. Tosh did not appeal the judgement and defaulted on the payment as ordered paving way for auctioneers to jump on to the matter. 

Tosh came into the limelight as a budding filmmaker in 2012 having directed Nairobi Half Life a Kenyan film drama that made history as the first Kenyan film to be selected for the Oscars at the 85th Academy Awards. The film did not, however, make the final shortlist. It was also the first time Kenya  had submitted a film at the prestigious Oscars.

Over the years, Tosh has built himself an incredible  film career portfolio  producing many notable films, including The Wedding Planner, Disconnect, The First Grader among others.

His latest film ‘Volume’  on Netflix that dragged him to court was recently nominated nominated for three awards at the Zanzibar Film Festival in the Best Actor in a series, Best Actress in a series and Best TV series categories.