[2023] KEHC 26273 (KLR)

Ernie Campbell & Company Limited v Gichugu Housing Co-operative Ltd (Civil Appeal 296 of 2012) [2023] KEHC 26273 (KLR) (Civ) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26273 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 296 of 2012

AN Ongeri, J

December 7, 2023

Between

Ernie Campbell & Company Limited

Applicant

and

Gichugu Housing Co-operative Ltd

Respondent

Ruling

1. The application coming for consideration in this ruling is dated 4/4/2023 brought under Section 1A, 1B and 63e of the Civil Procedure Act and Order 51Rule 1 of the Civil Procedure Rules 2010 seeking release of funds deposited in 14 bank accounts held at Consolidated Bank of Kenya Limited released to Munene Wambugu & Kiplagat Advocates.

2. The application is based on the ground that the said accounts were opened pursuant to an order of the court that the appellant deposits the funds as a condition of stay pending appeal.

3. Further that the appeals were dismissed on 29/9/2017 and in the circumstances the funds should be released to the respondent’s advocates. The application is supported by the supporting affidavit sworn on 4/4/2023.

4. The appellant filed a replying affidavit sworn on 5/7/2023 by Gopal Vagjiani opposing the said application in which it is deposed that the respondent is a stranger to the accounts mentioned by the applicant as they are not known to them. That the bank accounts that are in contention are only two; bank account number 513438 and 513439 both held at Consolidated Bank of Kenya, Koinange Street Branch.

5. In the year 2018 the applicants filed a similar application dated 8/6/2018 in respect of Bank Account number 513439. The application was heard and dismissed on the basis that proper accounts were to be availed before an order for the release of the amounts held in bank account number 513438 and 513439.

6. He deponed that in the circumstances of the instant application the same ought to be struck out as the bank accounts are unknown to the respondent and further that the application is premature.

7. The parties filed written submissions as follows; the respondent/applicant submitted that Consolidated Bank has in its letter dated 23/3/2023 given an account of all the money’s that it holds in the joint account that was opened in the name of Munene Wambugu & Kiplagat Advocate and T.K Kariba Advocates. The total amount in all the accounts as per the bank’s letter is Kshs. 1,925,586. 35 and the respective dates that the money was placed on the account has been indicated.

8. The respondent/applicant has provided a statement of each of the accounts that the bank holds in respect of the funds that were deposited and the bank opened an account for each of the funds that were being deposited monthly. The respondent/applicant has also supplied the court with copies of deposit slips for the funds.

9. It was the respondent/applicants submission that the money being sought is the rent that rightly belonged to it and the appellant/respondent’s objections to release the funds are meant to frustrate the applicant who was a landlord and was denied rent during the period that there was dispute between the parties.

10. The appellant/respondent submitted that to the best of their knowledge only two bank accounts are known or were disclosed to them by the advocates previously acting on their behalf Messrs. T. Kariba Advocates. The two bank accounts are 513438 and 513439 both held at Consolidated Bank of Kenya Limited, Koinange Street Branch.

11. The appellant/respondent admits that the monies were to be deposited into the aforementioned accounts where bank account number 513438 was to cater for a deposit in the sum of 2,464,800 the other bank account number 513439 was to cater for sum of Kshs. 1,791,800 and this position was captured in the ruling dated 22/11/2019.

12. The appellant/respondent is therefore seeking an accountability for the bank accounts associated with it by the respondent/applicant and the funds deposited therein, an issue that can only be brought to light if the advocates who were previously acting for the appellant/respondent are called forward to give an account and full disclosure of the bank accounts. The funds held in the accounts are considered client’s money the respondent/applicant cannot purport to seek an exclusive payment without any form of accountability.

13. The sole issue for determination is whether the funds in the 14 accounts should be released to the respondent’s Advocates.

14. The appellant stated in their submissions and replying affidavit that they have no knowledge of the said accounts.

15. Further, that the ruling delivered on 22/11/2019 only referred to two accounts namely 513438 and 5134339 held at Consolidated Bank of Kenya Limited Koinange Street.

16. I find that the appeal has since been dismissed and the Appellant has not controverted the averments in the supporting affidavit that the other accounts in the Application dated 4/4/2023 were opened for purposes of depositing the differences in rental payments pursuant to an order by Justice Onyancha made on7/12/2012.

17. I find that the appeal was dismissed on 29/9/2017 and the said funds which were deposited as a condition pending appeal.

18. The objection raised by the Appellants has no basis since the amounts were deposited pursuant to a court order.

19. I allow the Application dated 4/4/2023 with costs to the Applicants.

20. I order that the funds deposited in the 14 bank accounts listed on the face of the Application together with interest accrued to be released to the respondent’s advocates M/S MUNENE Wambugu & Kiplagat Advocates.

21. For avoidance of doubt, the said account are as follows;Consolidated Bank Of Kenya Limited, Koinange Street Branch, Account Numbers 10011100000013, 10011100000014, 10011100000028, 10011100000033, 10011100000040, 10011100000052, 10011100000081, 10011100000087, 10011100000098, 10011100000104, 10011100000105, 10011100000108, 10011100000110, 10011100000120.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF DECEMBER, 2023. A. N. ONGERI..........................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR