[2022] KEHC 10142 (KLR)

Gichohi v Uhuru Highway Development Ltd & 2 others (Civil Case 292 of 2008) [2022] KEHC 10142 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10142 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 292 of 2008

JK Sergon, J

July 15, 2022

Between

Hezekiah W. Gichohi

Plaintiff

and

Uhuru Highway Development Ltd

1st Defendant

Central Bank of Kenya

2nd Defendant

Libyan Arab African Investment Co. LTS t/a Grand Regency Hotel

3rd Defendant

Ruling

1. Libyan Arab African Investment Co. Ltd, t/a Grand Regency Hotel, the 3rd defendant herein took out the motion dated 25th April 2019 whereof it sought for the following orders:-i.Thatthis motion be certified urgent and guided by the limited nature and scope of the administrative working-out orders sought herein, the same be heard immediately or on a priority basis.ii.Thatto give effect to the intention of the parties set out the consent subsequently adopted as an order of the High Court by the Hon. Mr. Justice Onyancha on 21st October 2014, this honourable court be pleased to make the following orders:- The administrative requirement for the 3rd defendant’s counsel to produce the original deposit receipt as a pre-condition for compliance with the release order of the High Court by the Hon. Mr. Justice Onyancha on 21st October 2014, be dispensed with as the plaintiff’s counsel has failed, refused and/or neglected to furnish the same to the 3rd defendant’s counsel since 2014 despite numerous demands for the same.

The Deputy Registrar, principal accounting officer or such other officers of the Judiciary of the Milimani Law Courts are directed to accept the letter from the plaintiff’s advocates dated 17th June 2012 together the following bankers furnished, as prima facie evidence of the deposit of ksh.5 million, in lieu of production of the original receipt, if any, issued to the plaintiff.

The Deputy Registrar and/or principal accounting clerk of the Milimani Law Courts shall verify that the said sum of ksh.5 million was indeed deposited in the Judiciary account no. xxxx (KCB) through the aforesaid bankers cheques and corresponds to the Judiciary’s accounting records showing that the said sum of kshs.5 million is being held by the Judiciary.

Upon verification that the said sum of ksh.5 million was indeed deposited in the Judiciary account no. xxxx (KCB) through the aforesaid bankers cheques, the Deputy Registrar and/or principal accounting clerk of the Milimani Law Courts are directed to proceed to comply with the release order of the High Court made by Hon. Mr. Justice Onyancha on 21st October 2014, such that the aforesaid sum of kshs.5,000,000/= be immediately released and transmitted to the 3rd defendant, through their advocates on record, M/s Wetang’ula, Adan & Makokha Advocates, and through their account, particulars of which are as follows:-

Bank: Barclays Bank of Kenya

Branch: Queensway

Account Name: Wetang’ula, Adan, Makokha & Co. Advocates

Account No. xxxx

Swift Code: Brackena

iii.Thatcosts of this application be borne by the plaintiffiv.Thatthis honourable court be at liberty to grant such further or alternative relief as this court deems just and fit to grant.

2. The applicant filed the affidavit sworn by Ahmed Adan in support of the application. The application was served but it elicited no response.

3. When the motion came up for interpartes hearing, Mr. Mwangi, learned advocate for the applicant urged this court grant the orders sought. The learned advocate relied on the grounds stated on the face of the motion and further on the facts deponed in the supporting affidavit.

4. It is the submission of the 3rd defendant/applicant that a consent order was recorded on 21st October 2014 to have the sum of kshs.5 million released to the 3rd defendant through the firm of Wetangula, Adan & Makokha advocates.

5. It also stated that an application seeking to set aside the aforesaid consent order which was recorded before Justice Onyancha was heard and dismissed on 10th April 2019.

6. The 3rd defendant/applicant has also stated that the firm of M.s Kinoti & Kibe Co. Advocates was acted for the plaintiff has failed to release to the 3rd defendant’s advocate the original receipt despite many requests being made to that firm. This court was urged to make an order directing the release of the money without the submission of the original deposit receipt which an administrative pre-condition for the release of the deposited amount.

7. The applicant provided copies of relevant documents vizly: bankers cheque which were deposited in the Judiciary account no. xxxx.

8. Mr. Odera, learned advocate for the 2nd defendant informed this court that the 2nd defendant is in support of the application since the same is basically meant to facilitate the release of money in compliance of the consent order.

9. Having considered the material placed before this court together with the oral submissions of learned counsels, I am convinced the 3rd defendant’s motion dated 25th April 2019 has merit. The same is allowed thus giving rise to issuance of the following orders:i.The administrative requirement for the 3rd defendant’s counsel to produce the original deposit receipt as a pre-condition for compliance with the release order of the High Court by the Hon. Mr. Justice Onyancha on 21st October 2014, be dispensed with as the plaintiff’s counsel has failed, refused and/or neglected to furnish the same to the 3rd defendant’s counsel since 2014 despite numerous demands for the same.ii.The Deputy Registrar, principal accounting officer or such other officers of the Judiciary of the Milimani Law Courts are directed to accept the letter from the plaintiff’s advocates dated 17th June 2012 together the following bankers furnished, as prima facie evidence of the deposit of ksh.5 million, in lieu of production of the original receipt, if any, issued to the plaintiff.iii.The Deputy Registrar and/or principal accounting clerk of the Milimani Law Courts shall verify that the said sum of ksh.5 million was indeed deposited in the Judiciary account no. xxxx (KCB) through the aforesaid bankers cheques and corresponds to the Judiciary’s accounting records showing that the said sum of kshs.5 million is being held by the Judiciary.iv.Upon verification that the said sum of ksh.5 million was indeed deposited in the Judiciary account no. xxxx (KCB) through the aforesaid bankers cheques, the Deputy Registrar and/or principal accounting clerk of the Milimani Law Courts are directed to proceed to comply with the release order of the High Court made by Hon. Mr. Justice Onyancha on 21st October 2014, such that the aforesaid sum of kshs.5,000,000/= be immediately released and transmitted to the 3rd defendant, through their advocates on record, M/s Wetang’ula, Adan & Makokha Advocates, and through their account, particulars of which are as follows:-Bank: Barclays Bank of KenyaBranch: QueenswayAccount Name: Wetang’ula, Adan, Makokha & Co. AdvocatesAccount No. xxxxSwift Code: Brackenav.Each party to bear their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF JULY, 2022. ..............................J. K. SERGONJUDGEIn the presence of:....................................for the Plaintiff...........................for the 1st Defendant...........................for the 2nd Defendant