[2018] KEHC 4533 (KLR)
The court found that the primary concern was compliance with its earlier order for taking accounts, which was intended to ensure transparency and accountability in the management of the school’s finances. Allowing the applicant to access and withdraw funds from the account before the completion of the accounting...
Source-derived case information.
- Citation
- [2018] KEHC 4533 (KLR)
- Parties
- Plaintiff: Godfrey Ochieng Juma t/a Immaculate Heart School; Defendant: Makarias Makwata
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 68 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- A Kaniaru
- Legal Topics
- Interlocutory Injunctions, Accounting Orders, School Finances, Withdrawal of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Ochieng Juma t/a Immaculate Heart School
Plaintiff
Makarias Makwata
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant should be allowed to access and withdraw funds from the specified bank account before the taking of accounts is completed.
- 2 Whether granting access to the funds would interfere with the ongoing process of taking accounts as previously ordered by the court.
Ratio Decidendi
The court found that the primary concern was compliance with its earlier order for taking accounts, which was intended to ensure transparency and accountability in the management of the school’s finances. Allowing the applicant to access and withdraw funds from the account before the completion of the accounting process would interfere with the integrity of that process and potentially prejudice the respondent, who also claims entitlement to the school. The court emphasized that all accounts, including the one in question, must be subjected to the accounting exercise first. Only after the accounts have been taken and a clear financial picture has emerged would the court consider granting...
Court Disposition
application dismissed with costs
Orders
- The application dated 3/5/2018 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN BUSIA
LAND & ENVIRONMENTAL DIVISION
ELCNO. 68 OF 2017
GODFREY OCHIENG JUMA...................PLAINTIFF
VERSUS
MAKARIAS MAKWATA........................DEFENDANT
R U L I N G
1. What is before me for determination is a Notice of Motion dated 3/5/2018 and filed on the same date. It was brought under Order 51 Rule 1 of Civil Procedure Rules, 2010 and Sections 3 and 3A of the Civil Procedure Act (cap 21). The Applicant – GODFREY OCHIENG JUMA T/A IMMACULATE HEART SCHOOL – desires to get the following orders at this stage:
Prayer 3: That the Applicant is allowed to access, withdraw and/or utilize funds held and/or deposited in account No. 01020038860400 at National Bank of Kenya, Busia, and file a report of accounts thereof in court.
Prayer 4: That costs of this application be in the cause.
2. The Respondent – MAKARIUS MAKWATA –is opposed to the application and responded by filing a replying affidavit and a notice of preliminary objection. The response of the Respondent elicited a response by way of supplementary affidavit. The affidavit was filed on 25/5/2018.
3. On 22/5/2018, both sides agreed to canvass the application by way of written submissions. The Applicant’s submissions were filed on 19/6/2018 while the Respondent’s submissions had come earlier on 13/6/2018.
4. I have considered the application, the response made and the rival submissions. The overarching concern in this case is compliance with the order of taking accounts already in force. I do not intend to delve much into the contents of representations by both sides in this application because first things should come first. I will explain: there was an earlier application for taking accounts filed by the Respondent herein. The court heard the application and ordered that accounts be taken. The court did not specify that particular accounts are the ones to be affected. The taking of accounts should involve all accounts including the one herein. That should be done first before anything else.
5. I need to point out that the taking of accounts enhances transparency and accountability. This is especially crucial in this matter because though the Applicant claims sole ownership of the School, the Respondent also claims entitlement. If and when accounts are taken, one expects that a picture will emerge concerning how responsible the Applicant herein has been in handling School finances.
6. From the records availed by the Respondent, the account referred to has some funds amounting to 2 million shillings or thereabouts. In the application brought by the Applicant, it is not clear how much of that money the Applicant wants to withdraw. If the application is allowed before taking of accounts, that would amount to interference with an account targeted for the exercise of taking accounts. It would also mean giving a free hand to a person whose track record of handling school finances is unknown to the court.
7. The account however will not remain dormant forever. It should be active and operational so that the school benefits. All what is required is that accounts be taken first so that a clear state of affairs emerges concerning the financial standing of the School. The court would be minded to grant access to the account if accounts are taken first and the Respondent is thereafter shown to remain recalcitrant in the matter of operating that account.
8. For the reasons stated here, the application is found unmerited and is hereby dismissed with costs.
Dated, signed and delivered at Busia this 31st day of July, 2018.
A. K. KANIARU
JUDGE
In the Presence of:
Plaintiff: …………….……..……………..………..….…………
Defendant: …………….………...………..………..………
Counsel of Plaintiff: …………………..……..…………………
Counsel of Defendant: ………..……………..……..….………