[2018] KEHC 1493 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & TAX DIVISION

CIVIL CASE NO.498 OF 2012

COMMERCIAL BANK OF AFRICA LIMITED................PLAINTIFF

VERSUS

DANIEL NDUNGU............................................................. DEFENDANT

JUDGMENT

1. Commercial Bank of Africa Limited is the plaintiff hereof. It is a Limited liability company carrying on business as bankers in Kenya.

2. Daniel Ndungu, the defendant is carrying on business as an advocate.

3. Although the defendant was served on 31st October 2018 with a hearing notice, of this case, on 22nd November 2018, the defendant did not attend the hearing and the case proceeded unopposed.

4. The plaintiff’s claim is for judgment against the defendant for Ksh 25,000,000.

5. The plaintiff’s case was led by the evidence of Eva Njiraini, Pamela Ager, Jacob Owuor Ogola and Kennedy Olungo.

6. The plaintiff’s witnesses testified that the firm of Oraro & Company Advocates in the year 2012 was instructed to prepare a transfer, of immovable property in favour of Kijana Mworiaand Angela Wanjiku Kamau (the purchasers). The plaintiff had agreed to lend the purchasers ksh 25,000,000 to enable them purchase the property.

7. On registration of the transfer and the charge the firm of Oraro & Company wrote to the plaintiff by letter dated 10th May 2012. By that letter the plaintiff was instructed to pay the agreed loan proceeds to the vendor of the property, namely, KN Associates.

8. That letter was received and stamped on 14th May 2012 at the plaintiff’s legal department. The scanned letter was sent by the plaintiff’s legal department to the plaintiff’s credit administration unit. Further a photocopy of that letter was physically sent to the plaintiff’s administration unit with a request that the sum of Ksh 25 million be released in accordance with the instructions of Oraro & Company Advocates.

9. The plaintiff’s credit administration unit acted on a letter that had been substituted which gave contrary instruction on who was to be paid the amount of Ksh 25 million. Plaintiff paid that amount, as instructed by a substituted letter to the defendant’s account with Barclays Bank of Kenya Limited.

10. The original letter of Oraro & Company Advocates instructing the plaintiff to pay KN Associates was produced in evidence. The substituted letter also seeming to be from Oraro & Company advocates instructing the plaintiff to pay the defendant was also produced in evidence.

11. The Real time gross settlement (RTGS) which transmitted the amount of Ksh 25 million to the defendant’s account was also exhibited in evidence.

12. Kennedy Olungo (PW4) is a Senior Forensic Manager of Barclays Bank Kenya Limited. He confirmed that there was a payment, dated 30th May, 2012, of inward remittance of Ksh 25 million in Moi Avenue Branch of Barclays Bank Kenya Limited, in account No. [particulars withheld] in the name of Daniel Ndunguand company. He produced the statement of account to prove that remittance.

ANALYSIS AND DETERMINATION

13. The evidence adduced patently and clearly shows that the plaintiff paid to the defendant’s bank account Ksh 25 million money, as the plaintiff witnesses, testified, was intended to be paid to KN Associates. I have found a useful passage in the case White Horse Investment Limited v Nelson Havi T/A Havi Company Advocates [2009] eKLR where the court was considering a claim for money had and received as follows:

“…section 72 Bullen & Leake & Jacobs 13th edition thus:

“There are numerous circumstances in which the law will compel a person who has received moneys which in equity belong to another to pay them over to that other. The doctrine rests on the fiction of a promise implied in law. At one time it looked as though this form of action for ‘money had and received’ might be extended to all cases where the court thought it equitable that money should be paid over…”

14. In law the money wrongly paid into the defendant’s account, is recoverable. The defendant cannot successfully resit the plaintiff’s claim in the light of the evidence presented before court. There was no consideration for the money paid and accordingly this court finds that the defendant is liable to compensate the plaintiff. Indeed as correctly submitted by Mr. Fraser, learned advocate for the plaintiff, the defendant unjustly enriched himself by retaining the amount credited to his account.

15. Accordingly, the judgment of this court is a s follows:

a. Judgment is hereby entered for the plaintiff for Ksh 25,000,000 with interest at court rate from the date of filing suit until payment in full.

b. The defendant shall pay the plaintiff’s costs of this suit.

DATED, SIGNED and DELIVERED at NAIROBI this29thday of November,2018.

MARY KASANGO

JUDGE

Judgment read and delivered in open court in the presence of:

Court Assistant................Sophie

........................................... for the Plaintiff

........................................... for the Defendant

MARY KASANGO

JUDGE