[2006] KEHC 1797 (KLR)
The court found that the plaintiff had established, through affidavit evidence, that unauthorised debits were made from its accounts by the 1st defendant and credited to the other defendants' accounts. The evidence was unchallenged as the defendants failed to appear or oppose the application. The court held that the...
Source-derived case information.
- Citation
- [2006] KEHC 1797 (KLR)
- Parties
- Plaintiff: Barclays Bank of Kenya Limited; Defendant: Paul Masibo; Defendant: Unnamed 2nd Defendant; Defendant: Unnamed 3rd Defendant; Defendant: Unnamed 4th Defendant; Defendant: Unnamed 5th Defendant
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 69 of 2006
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application (chamber Summons) for Freezing Orders
- Outcome
- Plaintiff's application for freezing order granted; costs awarded to plaintiff.
- Judges
- MM Kasango
- Legal Topics
- Interlocutory Injunctions, Freezing Orders, Bank Fraud, Unauthorised Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barclays Bank of Kenya Limited
Plaintiff
Paul Masibo
Defendant
Unnamed 2nd Defendant
Defendant
Unnamed 3rd Defendant
Defendant
Unnamed 4th Defendant
Defendant
Unnamed 5th Defendant
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application (chamber Summons) for Freezing Orders
Legal Issues
- 1 Whether the plaintiff has established sufficient grounds for the grant of a freezing order over the defendants' bank accounts pending determination of the suit.
- 2 Whether the application is merited in the absence of opposition from the defendants.
Ratio Decidendi
The court found that the plaintiff had established, through affidavit evidence, that unauthorised debits were made from its accounts by the 1st defendant and credited to the other defendants' accounts. The evidence was unchallenged as the defendants failed to appear or oppose the application. The court held that the circumstances justified the grant of a freezing order to prevent dissipation of the disputed funds and to secure the plaintiff's ability to recover the amounts in question. The court therefore granted the plaintiff's prayer to freeze the defendants' bank accounts as specified in the chamber summons and awarded costs to the plaintiff.
Court Disposition
Plaintiff's application for freezing order granted; costs awarded to plaintiff.
Orders
- The defendants' bank accounts as specified in the chamber summons dated 23rd February 2006 are hereby frozen.
- The plaintiff is awarded costs of the chamber summons against all defendants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 69 of 2006
BARCLAYS BANK OF KENYA LIMITED……….........................................…………...PLAINTIFF
VERSUS
PAUL MASIBO & 4 OTHERS……………......................................………………..DEFENDANTS
R U L I N G
The plaintiff by chamber summons dated 23rd February 2006, brought under Order 39 Rule 1, 2 and 8 of the Civil Procedure Rules seeks to freeze a number of bank accounts belonging to the defendants.
The application is supported by an affidavit of Jason Turanta, plaintiff’s security investigation manager. He deponed as follows:
1) That the plaintiff has several branch accounts, which include, profit and loss accounts, account maintenance commission received, account maintenance accounts commission received (business) and account maintenance commission received (personal).
2) That the aforesaid accounts are operated by managers of the plaintiff’s respective branches.
3) That the deponent on 13. 2.2006 received information that the plaintiff’s queensway House and Nkurumah Road branches had lodged queries regarding their profit and loss account and that there were unauthorised debits from those accounts.
4) That the total unauthorised was for kshs 1, 307, 784/-.
5) The deponent carried out investigation and found out that all the unauthorised transactions were from one computer serial – YBNU022124 solely operated by a bank staff Mr Paul Nyongesa Masibo, the 1st defendant employed in the plaintiff’s information Technology Department (IT) and was charged with maintenance of the plaintiff’s computers.
6) On further investigation the deponent found out that the authorised debits were credited into the 2nd to 5th defendant’s accounts.
7) The 1st defendant on discovering that investigations were being done debited his account with kshs 300, 000 then absconded from his employment only later to tender his resignation.
8) The deponent prayed for the bank accounts stated in the chamber summons and belonging to the defendants be frozen to ensure that recovery of the unauthorised debits is not difficult.
The defendant’s counsel’s despite being served with a hearing notice for the hearing of the chamber summon on 12th July 2006 failed to attend court. The plaintiff’s application therefore was unopposed.
The court finds that the prayers sought in the chamber summons are merited and accordingly the court hereby grants the plaintiff’s prayer No. 2 in the chamber summons dated 23rd February 2006. The plaintiff is also granted costs of that chamber summons payable to all the defendants.
MARY KASANGO
JUDGE
Dated and delivered this 17th July 2006.
MARY KASANGO
JUDGE