[2018] KEHC 10131 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. E 024 OF 2018

JESUS TEACHING MINISTRY ........................................................... PLAINTIFF

VERSUS

DEEBLESS EVENTS AGENCY ................................................ 1ST DEFENDANT

DORCA AYOO ........................................................................... 2ND DEFENDANT

SYSTEM UNIT AFRICA LIMITED .......................................... 3RD DEFENDANT

RULING

1. A Consent entered herein on 28th June 2018 has substantially compromised the Notice of motion dated 22nd May 2018 and what remains for determination are prayers 3 and 4 thereof for the following Orders:-

3. THAT this honorable Court be pleased to issue an Order of disclosure by the Defendants to the Court of the information and location within 7 days of their assets to the value of Khs.11,250,000/- being deposit paid for event services to be offered at the planned crusade by the Plaintiff on 24th, 25th and 26th of August 2018 at KICC and Nyayo Stadium.

4. THAT in the alternative to (2) above the Honorable Court be pleased to issue an order directed at the Defendants to furnish security to the Court for a sum of Khs.11,250,000. 00/= within seven (7) days of the date of the order.

2. The Plaintiff, a Church organization intends to host a Grand crusade on 24th, 25th and 26th August 2018 at KICC and Nyayo National Stadium, Nairobi. To enable it do so, it needs event services and therefore contracted the 1st Defendant through an Agreement of 2nd May 2018. Pursuant to the terms of the Agreement a deposit of Kshs. 11,250,000/= was paid to the 1st Defendant.

3. The Plaintiff is aggrieved as it now takes the position that it was misled into entering the contract. That the 2nd Defendant who is an agent of the 1st Defendant held out herself as having authority to act and transact business on behalf of the 3rd Defendant. That prior to the execution of the contract, it is said that the 2nd Defendant attended all meetings in the company of personnel from the 3rd Defendant wherein the 2nd Defendant conducted herself as being an agent of the 3rd Defendant.

4. The Plaintiff is worried that the 1st Defendant does not have capacity to offer the services and it will therefore lose the deposit of Kshs. 11,250,000/=. That further,it has now found out that the 1st Defendant is not registered as a company but as a business name known as Deebless Agency and not Deebless Events Agency as presented to the Plaintiff.

5. After the parties herein discussed the matter, the following consent of 28th June 2018 was entered:-

1) That the 1st and 2nd Defendants cease from supplying and outsourcing and or in any way providing for any services for the Plaintiff’s crusade slated for 24th , 25th and 26th August 2018 effective from the date of issuance of the orders of the Court to wit dated 8th June 2018.

2) That the freezing Orders issued on 8th June 2018 on the 1st Defendant’s Account No.0100005429662 and 0100005420431 in the name of Deebless Agency at Stanbic Bank Kenyatta Avenue Branch subsist pending the hearing and determination of the main suit.

3) The Court makes a determination with regard to Order 4 of the Plaintiff’s Notice of Motion dated 22nd May 2018 to wit a determination on whether the Court should issue an order directing the 1st and 2nd Defendants to furnish the Court with security for costs to the sum of Kshs.10,713,000/= being the difference of the deposit sum and the amount currently held in Account No.0100005429662 in the name of Deebless Agency at Stanbic Bank Kenya Avenue Branch being Khs.537,728. 45/=. In the alternative, the Court issues tracing order for assets owned by the 1st and 2nd Defendants and or any assets purchased/acquired or the 1st and 2nd Defendants have interest in, emanating from the proceeds of the Khs.11,247,636/= deposited to the 1st Defendant’s Account on 8th May 2018.

4) That once the Court makes a Ruling on Order 4 of the Plaintiff’s Notice of Motion dated 22nd May 2018 parties can proceed to take a date for pre-trial directions and case conference.

6. The deposit of Kshs. 11,250,000/= was paid into the 1st Defendant’s Account number 0100005429662 at Stanbic Bank Kenya Avenue Branch on 8th May 2018. As at 31st May 2018 the account had a credit balance of Kshs. 537,728. 45/=.

7. The Application before Court is brought under the provisions of Order 39 rule 1, 2, 5, 6 and 7 of the Civil Procedure Rules. The application is for attachment before judgment and commences from Order 39 Rule 1 which reads:-

“Where at any stage of a suit, other than a suit of the nature referred to in paragraphs (a) to (d) of section 12 of the Act, the court is satisfied by affidavit or otherwise—

(a) that the defendant with intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against him—

(i) has absconded or left the local limits of the jurisdiction of the court; or

(ii) is about to abscond or leave the local limits of the jurisdiction of the court; or

(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof; or

(b) that the defendant is about to leave Kenya under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the court until the suit is disposed of or until the further order of the court”.

8. Under the provisions of Rule 1, there would be 3 scenarios in which an Order of this nature will issue. One is where the Defendant with intent to delay or obstruct a Court process or execution absconds or leaves the local limits of the jurisdiction of the Court or is about to leave Kenya or has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof.

9. This Court has keenly looked at the application before it and while it is clear that a very substantial sum of the deposit has been used up already, none of the following have been alleged or proved as against the Defendants:-

(i) That they have absconded or left the local limits of the jurisdiction of the Court;

(ii) That they are about to abscond or leave the local limits of the jurisdiction of the Court;

(iii) That they have disposed of or removed from the local limits of the jurisdiction of the Court their property or any part thereof;

(iv) They are about to leave Kenya under circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree.

That being absent, the Plaintiff is unable to satisfy the Court that I should call upon the Defendants to furnish security for their appearance or for the order of disclosure. I decline to grant prayers 3 and 4 of the motion of 22nd May 2018.

Dated, Signed and Delivered in Court at Nairobi this 2nd day of August,2018.

F. TUIYOTT

JUDGE

PRESENT;

Ogech h/b Okeno for Applicant

Odhiambo for Orinde for 3rd Respondent

N/a for 1st and 2nd Respondent

Nixon - Court Clerk