[2017] KEHC 8974 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 247 OF 2007

KENYA KNITTING & WEAVING MILLS LIMITED.....PLAINTIFF/RESPONDENT

VERSUS

MOHAMED MADHANI &

COMPANY ADVOCATES.....................................DEFENDANT/RESPONDENT

SHIRAZ GULAM HUSSEIN MAGAN.......................THIRD PARTY/APPLICANT

RULING

1. The application dated 27th November, 2015 seeks orders that:

“1) That this Honourable Court be pleased to order the release of the monies presently held by the Defendant as follows:-

(a)Kenya Shillings Ten Million (10,000,000/=) to the Plaintiff.

(b)The balance of the monies held by the Defendant to the Third Party.

2)That the costs of this application be provided for.”

2. It is stated in the supporting affidavit that on 29th September, 2015, this court made an order that by the consent of the parties herein, the money held by the Defendant be deposited in a joint interest earning account of the Plaintiff and the Third Party. That the Third Party and the Plaintiff agreed to deposit the money at Imperial Bank Ltd but the said bank went into receivership before the money was deposited. That thereafter the parties failed to agree on another bank. The Applicant who is the Third Party thereafter wrote to the Plaintiff’s and Defendant’s advocates on 10th November, 2015 and proposed that out of the Ksh.13,695,118. 50 held by the Defendant, Ksh.10,000,000/= be released to the Plaintiff and the balance to the Applicant. That the Plaintiff failed to respond to the said letter. According to the Applicant, the Plaintiff has already received the sum of Ksh.22 million and the proposed payment would mean that the Plaintiff has received more than what it claims while the Third Party who claims Ksh.23 million has not received anything.

3. The application is opposed. The Plaintiff’s contention is that the third party is attempting to vary the consent orders made herein on 30th September, 2015. It is stated that consent orders can only be varied by the consent of all the parties herein. According to the Plaintiff company, it has not received the sum of Ksh.22 million but has received a total of Ksh.20,789,944/=. The Plaintiff company stated that it’s total claim herein is for Ksh.30,010,832. 10 plus interest at the rate of Ksh.23. 5% per annum from 1st March, 2007 until payment in full. The Plaintiff further stated that it’s claim as at 4th May, 2016 stands at Ksh.31,112,580/=. It is further stated that even if the total sum of Ksh.13,695. 118. 50 allegedly held by the Defendant was released to the Plaintiff, there would still be an outstanding balance of Ksh.17,417,461. 50. It is averred that the Third Party has no valid claim against the Plaintiff and is not entitled to the funds held by the Defendant or otherwise.

4. The Third Party swore a further affidavit stating that the Plaintiff’s claim is for Ksh.20,787,944/= and that the Plaintiff has made unconscionable claims relating to interest on the amount. It is further deponed that the Defendant and the Third Party have not received any payment from the sale of land transaction that is the subject of this suit.

5. The Defendant firm of advocates is not opposed to the application.

6. The application was canvassed by way of oral submissions which I have considered.

7. It is not in dispute that the parties herein entered into a consent on 30th September 2015. The consent was that the sum of Ksh.13,695,118. 50 held by the Defendant be deposited in a joint interest earning bank account in the names of the Plaintiff’s and the Third Party’s advocates. It is also not in dispute that the sum of Ksh.20,787,944/= was earlier on paid to the Plaintiff.

8. The Plaintiff’s claim against the Defendant vide Originating Summons dated 6th March, 2007 is for Ksh.30,010,832. 10 together with interest thereon at the rate of Ksh.23. 5% per annum with effect from 1st March, 2007 till payment in full. That the Defendant had acted for the Plaintiff in a transaction for the sale of the Plaintiff’s land at the price of Ksh.28,000,000/=. That the sale amount was paid to the Defendant as a stakeholder until the registration of the transfer of the property. The sum of Ksh.30,010,832. 10 includes interest as at 28th February, 2007. The claim was denied by the Defendant who claimed indemnity from the Third Party. The Third Party also denied the claim.

9. The application at hand is an interlocutory one. The suit is yet to be heard and determined. The effect of the orders sought would amount to a variation of the consent orders recorded by the parties herein on 30th September, 2015. The Plaintiff has not consented to the variation. A consent order can only be varied or set aside by the consent of the parties or on grounds that would justify the setting aside of a contract or if certain conditions remain to be fulfilled or have not been met. (See for example the Board of Trustees National Social Security Fund Vs. Michael Mwalo).

10. In the case at hand, there is no consent by all the parties herein on how to disburse the money in question. The arguments by the Applicant go to the merits of the case which is yet to be heard. The claims by the Third Party on what is due and owing to the Plaintiff and the contention that the Plaintiff will receive more than it’s due share if the instant application is allowed is not supported by the Plaintiff’s pleadings. According to the Plaintiff, his it’s total claim is for Ksh.30,010,832. 10 plus interest at the rate of 23. 5% per annum.

11. With the foregoing. I find no merits in the application and dismiss the same with costs.

Date, signed and delivered at Nairobi this 13th day of July, 2017

B. THURANIRA JADEN

JUDGE