[2005] KEHC 585 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL COURTS

Civil Case 507 of 2005

KENYA COMMERCIAL BANK LIMITED ………….….....………….……..PLAINTIFF

VERSUS

TITUS KILONZO MUTUA

T/A MBWALA AGENCIES ………………………………………….1ST DEFENDANT

HELLEN NGINA KAATINE …………………………………...……2ND DEFENDANT

MWALA AGRO SUPPLIES LTD. ……………...……..…………....3RD DEFENDANT

GLADYCE LANGAT ……………………………………………...…4TH DEFENDANT

CHRIS A. ABELE

T/A ABELE & CO. ADVOCATES …………...……………..……....5TH DEFENDANT

ERIC MUTISYA MUSYOKI ……………………….……...…………6TH DEFENDANT

JOSHUA IKATAI KIMEU ………………………………………..…7TH DEFENDANT

PAUL MUTHOKA MBOLE …………………………………………8TH DEFENDANT

DAVIS MAINA MAHINDA ………………………………...………..9TH DEFENDANT

CYRUS N. MBUGUA ………………………………….………….10TH DEFENDANT

PRADIP KUMAR VASANT BHAI PATEL ……………..………11TH DEFENDANT

MOHINI HARDWARE LTD. …………………………...……...…12TH DEFENDANT

CO-OPERATIVE BANK OF KENYA LTD. ……..………...……13TH DEFENDANT

BARCLAYS BANK OF KENYA LTD. …………….……………14TH DEFENDANT

STANBIC BANK KENYA LTD. ………………….…….………..15TH DEFENDANT

AFRICAN BANKING CORPORATION LTD. …………...…….16TH DEFENDANT

STANDARD CHARTERED BANK KENYA LTD.…………....17TH DEFENDANT

RULING

In an omnibus application of the 16. 9.2005 the Applicant seeks order against the various Respondents herein for injunctive relief. The application in so far as the 11th and 12th Respondents are concerned was heard first. The order sought against the 11th and 12th Respondents is in prayer 13 of the application which seeks the following order:-

“13a) THAT pending the hearing and determination of this suit, this Honourable court be pleased to issue a temporary injunction restraining the 4th, 5th, 11th and 12th Defendants and their respective agents from dealing or gaining access to their accounts held with the Plaintiff as follows:-

Defendant/ Account holder Branch Account number

4th Defendant Tom Mboya 010-135357376

Gladyce Langat Street

5th Defendant City Centre 240506379

Chris A. Abele

11th Defendant Kitengela 297760620

Pradip Kumar Vasant

Bhai Patel

12th Defendant - Kitengela 297501313

Mohini Hardware Ltd.”.

I am not at this stage dealing with the orders sought against the 4th and 5th Respondents.

The application is based on the grounds set out in the application and the supporting affidavits of Samuel Okero Ikonyi and Paul K. Kisorio.

It is the Applicant’s contention that one of its employees, Titus Kilonzo Mutua, the 1st Defendant so manipulated the monies lying to the general credit of the Applicant in an account number 8990000890 by means of electronic transfers that he credited the accounts of the 11th and 12th Respondents with funds which did not belong to them and as such the Applicant wishes these funds to be frozen until the matters in issue in this suit are disposed off.

The particular sums which the Applicant says are wrongly credited to the Accounts of the 11th and 12th Respondents appear at page 170 of the annextures to the affidavit of Paul K. Kisorio and are as follows:-

11th Respondent’s account:

6. 5.05 Kshs.310,000/= credited to Account No.32297760620

10. 5.05 Kshs. 610,000 credited to Account No.32297760620

10. 5.06 Kshs.1,600,000 credited to Account No.32297760620

25. 5.05 Kshs.600,000 credited to Account No.32297760620

Total Kshs. 3,220,000. 00

Additionally a sum of shs.700,000/= being the Kenya Shillings equivalent of US$8883-42 is referred to, I will deal with this sum later.

These sums are reflected in the Bank Statement of the 11th Respondent annexed to a further Supporting Affidavit sworn by Samuel Okero Ikonyi on the 3. 11. 2005 in sheet Numbers 56 and 63.

12th Respondent’s Account:

6. 05. 2005 - Kshs.300,000/= Credited to account No.32297750313.

This credit appears on sheet No.27 of the 12th Respondent’s Account.

How the sums came from the Applicant’s funds is shown at page 298, 212, 218 and 231 of annexture of PKK 1.

The sum of Kshs.700,000/= in respect of a Bankers Order for US$8883-24 is shown at page 218 and shows the beneficiary to be Mukund Bhai Parsottam Bhai Patel.

In response to the allegations, the Respondents relied on the affidavit of the 11th Defendant sworn on the 4. 10. 2005 in which he stated he was the proprietor of the 11th Respondent. It was his case that the 1st Defendant bought a huge consignment of goods from the 11th and 12th Defendants and used to deposit money. If the goods he wanted were not available he would ask for a refund.

He further stated he always banked cash and cheques in his Kitengela account and held funds in excess of Kshs.1 million.

The question here, however, is not what other monies the 11th and 12th Respondents received but if they have given a satisfactory explanation as to the Misc. credits made into their respective accounts.

With regard to the Bankers order for US$ 8883. 24 the 11th Respondent in paragraph 6 of his affidavit claims he deposited Kshs.8883. 24 by cash in return for which, they, I presume the Applicant gave a Bankers cheque in dollars. This cannot be right as Kshs.8883. 24 is not the equivalent of US$8883. 24. He relied on his exhibit PKD. However, this is a request to the Applicant to remit a sum of US$8883. 24 to Mukund Bhai Parsottam Bhai Patel who he says is his mother. The remission does not show that the 11th Respondent paid a sum of Kshs.700,000/= in cash. Indeed it is clear this sum came from the Applicant’s general funds.

It is not for me to say whether the 11th and 12th Respondents will be able to establish that the funds they received by way of miscellaneous credits were paid to them by the 1st Defendant for goods delivered. However, there is nothing to show on the statements that these sums came from the 1st Defendant nor is there any evidence by way of receipts that he was paid cash in respect of goods not taken. Nor any monies showing what goods if any were taken.

I am entitled to make the order asked for if I am satisfied that the Applicant has made out a prima facie case with a probability of success. On the evidence before me I am so satisfied. It is apparent that funds have been taken from the Applicant’s General Funds and transferred to the account of the 11th and 12th Respondents. This in itself is an unusual transaction and it is suspicious to say the least that the 1st Defendant who worked for the Applicant, is the one for his benefit according to the 11th Respondent the funds were received by him.

This also applies to the Bankers order for which the 11th Respondent has shown no evidence what was paid for it. Indeed it was paid for from the General Funds of the Applicant.

In the result I grant the orders sought for. Costs will be in the cause.

Dated and delivered in Nairobi this 21st day of October, 2005.

P. J. RANSLEY

JUDGE