[2012] KEHC 89 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

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ASHFORD MURIUKI MUGWUKU

T/A ASHORDS & CO. ADVOCATES ……..…………………… PLAINTIFF

VERSUS

MRS. NANCY WANJA GATABAKI ………………………… DEFENDANT

R U L I N G

1. On 3 August, 2012, my learned brother Musinga J. delivered his Ruling in this matter in which he set-aside the judgement herein in default of defence along with all other consequential orders which needed to be set aside. What is before court by way mention is as regards the interpretation of my Ruling dated 26 March, 2012 in respect of the amount to be deposited in an interest-bearing account. According to Mr. Nganga who appeared before me on 6 September, 2012 on the part of the Plaintiff, there had been a difference in interpretation of my Order where the Plaintiff and the Garnishee were of the view that the Order entailed the opening of a separate designated account from that held by the Plaintiff in the Garnishee bank and in which the sum of Shs. 75 million would be deposited. It appears that it is the Defendant's interpretation of my Order that the Shs. 75 million was to remain in an account solely operated by the Defendant.

2. I understand that on the delivery of my Order on 26 March, 2012, the Garnishee wrote to the Plaintiff and the Defendant for details of the branch of the Garnishee bank preferred by the two parties for the account to be opened as well as the operational mandate therefore. Mr. Nganga emphasized that the Plaintiff's view is that by necessary implication as per my said Ruling, I meant that the Garnishee bank should hold the Shs. 75 million in a separate account. That would have the effect of separating the said Shs. 75 million from the sum of Shs. to 262,000,000 which is the money that has been paid to the Garnishee bank's Kiambu Branch in relation to the settlement of other suits as before this court. In Mr. Nganga’s view, the opening of a separate account which, although not agreed to by the parties, would not prejudice any of them. In any event, interest could continue to accrue on the separate account.

3. Mr. Ashimosi, appearing for the Defendant, had a different view of my said Order. He noted that the parties were before court as a result of a request made by counsel for the Plaintiff to so do. In his opinion the application made by the Plaintiff's counsel was res judicataand a Ruling had been made on the point by Mutava J. on 21 May, 2012. He stated that if the Plaintiff wished to vary the said Order of my learned brother then he must make an application so to do. Having said that, Mr. Ashimosi wished to comment upon my Order of the 26 March, 2012. He maintained that the Order was an attaching order pursuant to section 52 of the Advocates Act. It was the Defendant's understanding that the same attached the funds in the manner in which they are deposited in the account. The rights of the advocates are yet to be determined. He maintained that a deposit of funds in the advocates' account was envisaged by section 52. The requirement of the advocates to put the funds into a separate account will be highly prejudicial to the rights of the advocate to hold on to those funds. The Order made by me on 26 March, 2012 was an interim Order. Finally, counsel noted that no leave for this matter to be heard in vacation had been granted in accordance with this court's Vacation rules.

4. In a short reply, Mr. Nganga stated that my learned brother Mutava J. on 21 May 2012, had never pronounced himself on the issue which was being raised before court now. The nature of the application is upon the interpretation of the Order which is for what parties were before court. Counsel noted that when the Presiding Judge, Musinga J. delivered his Ruling on 3 August, 2012 (in vacation), he directed the matter to be mentioned before this court in vacation as and when I was the vacation Judge. That direction was by the consent of the parties.

5. I have perused the Orders made by my learned brother Mutava J. on the twenty-first and twenty-second of May 2012. On the first date, my learned brother detailed as follows:

"The Plaintiff is directed to formally apply for review of the orders of Havelock J. with regard to the opening of the account in which the Shs.75 million will be held. Prayer (b) of the Plaint is hereby marked as withdrawn with no orders as to costs. I direct that this file be mentioned on 22/5/2012 together with Misc. Cause No. 157/2012. "

Thereafter on the 22 May, 2012 my learned brother Mutava J. recorded:

"Matter is stood over generally".

At the end of May,the file came before the Presiding Judge as I have detailed above and after Musinga J. had delivered his aforesaid Ruling on 3 August, 2012, Mr. Nganga submitted that there had been a problem regarding the opening of the account where the Shs. 75 million was to be deposited. The learned Judge detailed:

"Let the matter be mentioned before Hon. Mr. Justice Havelock on 3/9/2012".

6. The above is how the matter stood before me on 6 September, 2010. I note that my learned brother Mutava J. having first directed that the Plaintiff should make a formal application for review of my Order of 26 March, 2012, thereafter stood this matter over generally. Subsequent to that my learned brother Musinga J. directed that the question of the opening of the account should be mentioned before me, presumably for clarification of my said Order. I have now reviewed paragraph 4 of my Ruling of 26 March, 2012 particularly the last sentence thereof. I apologize to parties if the same was not clear. At the time of making the Ruling, I had no idea as to when the main sum of monies being approximately Shs. 225 million was going to be required to be disbursed in the settlement of the suits involving the Defendant as currently before this court. Consequently, I certainly had in mind that the Garnishee herein should establish a separate interest-bearing account in the joint names of the advocates for the Plaintiff and the Defendant into which the sum of Shs. 75 million would be paid and held. Accordingly, I direct that the advocates of the parties herein shall immediately contact the Garnishee bank first to clarify in which branch such joint interest-bearing account should be opened and secondly, to detail the signatories on each side in respect of the mandate of the account. I further direct that once the account has been opened, the Garnishee do transfer the said sum of Shs.75 million thereto without any further delay. Orders accordingly. No order as to costs.

DATED and delivered at Nairobi this 10th day of September, 2012.

J. B. HAVELOCK

JUDGE