[2008] KEHC 3054 (KLR)
The court found that the defendant had admitted in its pleadings that all depositors' money and shares 'went under', which amounted to an admission that the plaintiffs' funds were no longer available. The defendant failed to provide any substantive defence or explanation for the plaintiffs' inability to access their...
Source-derived case information.
- Citation
- [2008] KEHC 3054 (KLR)
- Parties
- Plaintiff: Francis Muchemi Joel; Plaintiff: Joseph Gathuni Wahu; Plaintiff: James Muriithi Kama; Defendant: Mwea Rice Farmers Sacco Society Limited
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 14 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Summary Judgment Under Order 35 Rule 1 CPC
- Outcome
- application allowed; judgment entered for plaintiffs; costs awarded to plaintiffs
- Legal Topics
- Bank Customer Relationship, Access to Bank Accounts, Summary Judgment, Admission of Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Muchemi Joel
Plaintiff
Joseph Gathuni Wahu
Plaintiff
James Muriithi Kama
Plaintiff
Mwea Rice Farmers Sacco Society Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment Under Order 35 Rule 1 CPC
Legal Issues
- 1 Whether the plaintiffs are entitled to access their accounts with the defendant as per the contractual relationship.
- 2 Whether the defendant's admission that depositors' money 'went under' constitutes a sufficient defence to the plaintiffs' claim.
- 3 Whether summary judgment should be entered in favour of the plaintiffs under order 35 rule 1 CPC.
Ratio Decidendi
The court found that the defendant had admitted in its pleadings that all depositors' money and shares 'went under', which amounted to an admission that the plaintiffs' funds were no longer available. The defendant failed to provide any substantive defence or explanation for the plaintiffs' inability to access their accounts. The court held that there were no triable issues raised by the defence, and that the plaintiffs were entitled to judgment as prayed. The court further ordered that the defendant may liquidate the decretal amount by installments acceptable to the plaintiffs, and awarded costs to the plaintiffs.
Court Disposition
application allowed; judgment entered for plaintiffs; costs awarded to plaintiffs
Orders
- Judgment entered for the plaintiffs as prayed in the amended plaint.
- Defendant may liquidate the decretal amount by installments acceptable to the plaintiffs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Case 14 of 2005
FRANCIS MUCHEMI JOEL………………...............…………...1ST PLAINTIFF
JOSEPH GATHUNI WAHU…………………...............………..2ND PLAINTIFF
JAMES MURIITHI KAMA…………...................……………….3RD PLAINTIFF
VERSUS
MWEA RICE FARMERS SACCO SOCIETY LIMITED…………..DEFENDANT
RULING
The several persons who filed this suit sought declaration against the defendants and an order that the defendant do allow the plaintiffs access their accounts. The relationship between plaintiffs and defendants is contractual like that exists between bank and its customers. At the time the plaint was filed the plaintiffs held accounts with the defendant. However the Defendant refused to give access to the plaintiffs to their accounts. The defendant has admitted that in the year 2004 its banking services collapsed and society ceased to operate. However they deny and demand proof of the plaintiff’s claims. Time has passed since the filing of this suit. On 21/12/2007 the plaintiff’s have filed a notice of motion seeking judgment under order 35 rule 1 CPC as prayed in the amended plaint. On the ground the defendant has started re-paying the debt. The application is supported by affidavit of Francis Muchemi Joel with annextures showing that some of the plaintiff’s have received payments from the defendant. In reply the Defendant denies these facts and states that there is a defence in this case and the plaintiffs should proof their case.
It is to be noted here that the plaintiffs/Applicants are not claiming their debt. They want to be allowed to access their accounts as in banking business. It is also to be noted that in the statement of defence the Defendant admitted being unable to operate the plaintiffs accounts saying at paragraph 4 thereof “all depositors money and shares went under” This can only mean that the defendant had no money in the accounts of the plaintiffs. And it is for the Defendant to give an account of the plaintiffs’ money held in their books before the collapse of the bank.
Upon perusal of the pleadings and affidavits filed by the parties it is clear that the Defendant has not defence to the plaintiffs claim. There is admission that the plaintiffs deposits “went under” The amount was misappropriated by previous management. In the circumstances I find that the Applicants are entitled to judgment there being no triable issues disclosed by the Defendant defence. I allow the application and grant orders as prayed. The applicants are awarded the costs of this suit together with this application.
It is also ordered that the Defendants shall be at liberty to liquidate the decretal amount by installments acceptable to the plaintiffs.
It is so ordered.
Dated this 3rd April, 2008.
J. N. KHAMINWA
JUDGE
3/4/2008
Khaminwa – Judge
Njue – Clerk
Ms A, Thungu for Applicant
N/A for Kahiga
Ruling read in open court.
J. N. KHAMINWA
JUDGE