[2023] KEHC 26062 (KLR)

Kruse v Chege & 3 others (Civil Suit E108 of 2021) [2023] KEHC 26062 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26062 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit E108 of 2021

DKN Magare, J

November 21, 2023

Between

Hans-Jurgen Kruse

Plaintiff

and

Joyce Wairimu Chege

1st Defendant

Standard Investment Bank

2nd Defendant

Stanbic Bank Limited

3rd Defendant

Kenya Commercial Bank Limited

4th Defendant

Judgment

1. The Plaintiff filed a 16-page plaint. I was tempted to strike out the same, but I recalled the provisions of Article 159(2) of the Constitution which provides as follows: -“(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principlesa.Justice shall be done to all, irrespective of status;b.Justice shall not be delayed;c.Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.Justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted.

2. The plaint ought to comply with Order 2 Rule 2, which provides that: -“(1)Every pleading shall be divided into paragraphs numbered consecutively, each allegation being so far as appropriate contained in a separate paragraph.(2)Dates, sums and other numbers shall be expressed in figures and not words.”

3. The plaint has numbers expressed in words and not figures. This caused the court to have a herculean task of converting the two figures. I will endeavour to summarize the case as set out in the plaint in the best way I can.

4. The Plaintiff pleaded that he was smitten by cupid Arrow and he became beholder to one lass from the east Coast of Africa who is now the Defendant. The Plaintiff and the 1st defendant, the Plaintiff’s Cinderella were engaged to be married. This engagement took place in the Green City in the sun, Nairobi. They quickly decided to immigrate to Kenya.

5. It must have been dazzling stories given by the 1st Defendant that must have created a dream country that the Plaintiff must have been dreaming about. To actualize his dream, they agreed that the Invest in properties in Kenya. According to him, the 1st Defendant advised that Kenyan law forbids foreigners from owning property and as such it is best done by proxy. This was half true. This is in line with the advise once given by C B Madan. The lies have to mimic the truth for someone to know that you respect their intelligence. in N v N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

6. Had the Plaintiff googled, on the question, “can foreigners own property in Kenya?” Mr Google will have told them as doth: -“Foreigners can own property in Kenya in their name. The Constitution (2010), the Lands Act (6/2012) and the Land Registration Act (3/2012), subject to certain limitations, grant the right to any person, either individually or in association with others, to acquire and own land in Kenya.”

7. Naturally, the Plaintiff was the most available and trusted proxy in Kenya. The 1st Defendant and Plaintiff agreed to invest, after all, they were planning to marry and like the fairy tale story, Cinderella they were to live happily ever after. As a result of the Camaraderie the Plaintiff purse loosened. In a mind boggling and dazzling razzmatazz, the Plaintiff sent the following Amounts to accounts in the 1st Defendant names: -a.7/4/2021 – Euro 500 to Stanbic Account No. 2534. b.On 23/4/2021 opened Account No. 2859 Standard Investment Bank.c.The duo travelled to Germany and sent:i.100152. 50 Euros on 19/4/21 to Account 2534 received on 20/4/2021 as Ksh. 12,902,646. 578. ii.On 19/4/2021 Euro 100, 152. 50 to Account No. 2534 at Stanbic received as Ksh. 12,902,646. 575)iii.On 3/5/2021 the Plaintiff sent Euro 100,152. 50 received as Ksh. 12,902,646. 575 to Standard Investment Bank.iv.On 3/5//2021 he sent 100,152. 50 which was received as Ksh. 12,902,646. 575 at Standard Investment Bank Account No. 2859. v.On 3/5/21 he sent 1,015 Euros received Ksh. 130,762. 45 to Standard Investments Bank Account 2859. vi.On 2/7/2021 he sent Euro 100,152. 50 received as Ksh 12,902,646. 575) to Standard Investments Bank Account No. 2859.

8. These amounts were to be invested in Mansa X Fund to earn returns. The Plaintiff stated that correspondence show that Ksh 25,728,000/= and Ksh 12,700,000/= of the aforesaid amounts were invested for his benefit. The last amount admitted to be invested for his benefit was thus (Ksh. 38,428,000).

9. The Plaintiff and first defendant a started living together in Diani for a test run. As it can be seen from the acrimony in this matter, it did not work. He also stated that he bought KDB 456H Toyota Rav for 12,821. 70 Euros vide transfer and balance from amounts held for the Plaintiffs by the 1st defendant.

10. He stated that a third Account No. 3161 was credited for him for a Mansa X Fund but it is in the defendant’s house.a.A sum of Ksh. 12,700,000 were deposited therein on19/7/21021 the Plaintiff transferred 6,000,000/= to her Account No. 4258 at KCB.b.They also bought an unknown property which he in did not want the court to deal with. He stated that Ksh 25,575,000 was transferred to Account No. 2929 and invested in the name of the 1st Defendant.

11. He then stated that the 1st Defendant’s actions were fraudulent. The plaintiff then sought in the plaint has a record 12 prayers, that is:-a.A declaration that the Plaintiff is the rightful and beneficial owner of the 100,152,50 Euros read as One Hundred Thousand, One Hundred and Fifty-Two Euros Cents Fifty transferred to the 1st defendant’s bank account No. 0100007992534 at Stanbic Bank Limited the 3rd defendant herein, equivalent to Kenya Shillings Twelve Million Nine Hundred and Two Thousand, Six Hundred and Forty-Six and Sixty Cents (Ksh. 12,902,646. 575) at the current exchange rate of 128. 83 and that the same is held in trust for the Plaintiff.b.A declaration that the Plaintiff is the rightful and beneficial owner of the 100,152,50 Euros read as One Hundred Thousand, One Hundred and Fifty-Two Euros Cents Fifty transferred to the 1st defendant’s bank account No. 0100007992534 at Stanbic Bank Limited the 3rd defendant herein, equivalent to Kenya Shillings Twelve Million Nine Hundred and Two Thousand, Six Hundred and Forty-Six and Sixty Cents (Ksh. 12,902,646. 575) at the current exchange rate of 128. 83 and that the same is held in trust for the Plaintiff.c.A declaration that the Plaintiff is the rightful and beneficial owner of the 100,152,50 Euros read as One Hundred Thousand, One Hundred and Fifty-Two Euros Cents Fifty transferred to the 1st defendant’s bank account No. 50122002859 Standard Investment Bank Global Market Client Account at Standard Investment Bank the 2nd defendant herein, equivalent to Kenya Kenya Shillings Twelve Million Nine Hundred and Two Thousand, Six Hundred and Forty-Six and Sixty Cents (Ksh. 12,902,646. 575) at the current exchange rate of 128. 83 and that the same is held in trust for the Plaintiff.d.A declaration that the Plaintiff is the rightful and beneficial owner of the 100,152,50 Euros read as One Hundred Thousand, One Hundred and Fifty-Two Euros Cents Fifty transferred to the 1st defendant’s bank account No. 50122002859, whose beneficiary was indicated as Standard Investment Bank Global Market Client Account and the 1st defendant herein, at Standard Investment Bank the 2nd defendant herein, equivalent to Kenya Shillings Twelve Million Nine Hundred and Two Thousand, Six Hundred and Forty Six and Sixty cents (Ksh. 12,902,646. 575) at the current exchange rate of 128. 83 and that the same is held in trust for the Plaintiff.e.A declaration that the Plaintiff is the rightful and beneficial owner of the 1. 015,00 Euros read as One Thousand and Fifteen Euros transferred from bank account No. DE97 1804 0000 0180 8500 00 at Commerzbank in Germany to bank account No. 50122002859, whose beneficiary was indicated as Standard Investment Bank Global Market Client Account and the 1st Defendant/Respondent herein, at Standard Investment Bank the 2nd Defendant/Respondent herein and that the same is held in trust for the Plaintiff.f.A declaration that the Plaintiff is the rightful and beneficial owner of the 100,152,50 Euros read as One Thousand, one Hundred and Fifty-Two Euros Cents Fifty transferred to bank account No. 50122002859, whose beneficiary was indicated as Standard Investment Bank Global Market Client Account and the 1st Defendant herein, at Standard Investment Bank the 2nd Defendant herein, equivalent to Kenya Shillings Twelve Million Nine Hundred and Two Thousand, Six Hundred and Forty-Six Cents (Ksh. 12,902,646. 575) at the current exchange rate of 128. 83 and hat the same is held in trust for the Plaintiff.g.A declaration that the Plaintiff is the rightful and beneficial owner of account held under client code 002859 for an investment of Ksh. 25,728,000/=; client code 003161 for an investment of Ksh. 12,700,000/= and client code 002929 for an investment of Ksh. 25,575,000/= with the 2nd defendants Mansa – X Fund Investment and that the same is held in trust of the Plaintiff.h.A declaration that the Plaintiff is the rightful and beneficial owner of monies transferred from his funds onto Bank account No. 50122003161 held with the 2nd defendant and personal account No. 1283974258 held with the 4th defendant herein and that the same is held in trust or the Plaintiff.i.A declaration that the Plaintiff is the rightful and beneficial owner of motor vehicle Registration No. KDH 456H and hat the same is held in trust for the Plaintiff.j.An order compelling the 1st defendant to provide a proper account of all the monies transferred by the Plaintiff to the amounts held under her name and order for compensation for any unaccounted amounts spend by herself.k.The 1st defendant be compelled to compensate the Plaintiff in the sum of Ksh. 64,643,995. 325/=l.A mandatory injunction compelling the defendants jointly and severally to immediately transfer the funds, together with interest earned thereon and the motor vehicle Registration No. KDH 456H in prayers a, b, c, d, e, f, g, h, I and j above to the Plaintiff.m.Costs of this suit and interest thereon.

Defence 12. The 2nd defendant filed defence on 24/1/2022 where they stated that thea.Account No. 2859 was put in the 1st Defendant’s name at the Plaintiff’s request. They stated that the account where 25,728,00 was transferred on 4/5/2022 is still running. They denied a further transfer of Ksh. 12,902,646. 575. b.They stated that Account No. 2289 and 3161 were subsequently opened on the request of the Plaintiff and Ksh. 12,700,000 in Euros was sent on 5/7/2021. c.Further that Account No. 2929 was opened and Ksh. 12,700,000 was banked. The 1st defendant instructed 5,000,000 to be sent to her account.d.They denied collusion. They aver that 25,575,000 was Transferred from Stanbic bank to Standard Investment Bank on 2/6/2021 and the account is still intact. They denied any liability for any of the business.

1st Defendants Defence 13. The first defendant filed defence on 25/11/2021. She denied misinforming the Plaintiff. She stated that Euro 500 was deposited by the Plaintiff out of his free will on account of love and attention. She admits funds were transferred out of love and affection on the Plaintiff’s instructions. She denied advising the Plaintiff. She stated that she paid for the vehicle KDB 456H Toyota Rav 4 and allowed ownership to her. She denies that the car is held in trust for her.

14. She stated that the money that was in the Standard Investment Bank was hers and she could utilise as she wished. She stated that she transferred money in her Stanbic Account for her benefit. She denied the Rest of the claim. The defence is a classic how not to write a defence. The court had this kind of defence in the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR, where the court of Appeal stated as doth: -“The main object of this rule and r.14 is to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite issues, and so diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing (per Jessel M. R. in Thorp v Holdworth (1876) 3 Ch. D. 637). This object is secured by requiring that each party in turn should fully admit or clearly deny every material allegation made against him. Thus, in an action for a debt or liquidated demand in money, a mere denial of the debt is wholly inadmissible.”I will also add that the crucial deficiency of a general denial which I have already described, also applies to the evasive, inconsistent and contradictory alternative general traverse in the appellant’s defence. This was that if the respondent had extended any overdraft facilities without stating the amount involved, to the appellant which was moreover, denied, then the same and here again, without stating how and when, had been paid. Such a spurious pleading in the alternative cannot give any merit to the defence and so also makes it one which discloses no reasonable defence for all purposes including that of 0 6 r 13(1)(a).”

15. I will point out here there were orders in situ against the 1st defendant. I directed that parties were wasting time on minor issues instead of keeping the eye on the ball. The matter had proceeded from 2021 to 2023 only a myriad of applications. Parties must always remember that we are all enjoined to aid the court in administration of justice, especially on expeditions disposal of cases.

16. A myriad of Applications are a waste of judicial time and inflammation of emotions that are bound to occur when love goes South. It is my sincere hope that this case settled the issue between the parties.

3rd Defendant’s defence 17. The 3rd Defendant filed defence on 24/4/2023 denying the contents of the Plaintiff. They averred that Ksh. 25,275,000/=from Account No. 2534 was transferred on 10/5/2021 on the Plaintiff’s written instructions.

18. The 3rd Defendant filed a notice of indemnity against the 1st Defendant on the basis of that, if a declaration is made that the amounts claimed by the Plaintiff are awarded the 3rd defendant is entitled to falls indemnity. This is because the transfer of all money were issued by the 1st defendant and the Plaintiff on 10/5/2021 for the 3rd Defendant to transfer the money to the 2nd Defendant. The 3rd Defendant stated that it honoured its contractual obligations. The 3rd Defendant sought that the 1st defendant indemnifies the 3rd defendant from any liability. They denied specifically particulars of fraud.

4th defendant’s defence 19. The 4th Defendant does not appear to have filed defence.

Evidence 20. The matter came before me on 6//3/2023 for direction. The parties were reluctant to proceed. I set the suit down for hearing but parties here still reluctant. They were dealing with small compliance issue. Issue a warrant on 31/5/2023. I fixed the matter for hearing on 21/6/2023.

21. The Plaintiff testified on the said date by adopting his statement. The statement reiterates the contents of the plaint. He also produced a list of documents. He admitted issuing instructions to transfer money from Stanbic to the 2nd defendant. He stated Stanbic informed him that he could open an account but needed pin. He transferred money on 19/4/2021. The last transfer was on 2/6/2021. He transferred a net total of Euro 500,000/=. He also bought motor vehicle registration KDB 451 A for Euro 12821 on 30/6/2021.

22. On cross Examination by Mr. Akello, the plaintiff stated that he had an email it is the one he used to communicate with Esther Maru. He confirmed to have transacted in transfer of all the amount to Standard Investment Bank from Standard Investment Bank and from his account to Standard Investment Bank and Stanbic bank.

23. On being cross examined by Mrs Akwana Collette for the 3rd Defendant. He indicated on the form with Stanbic that he was a spouse. He was also shown the mandate and confirmed that he was to be kept informed via email. He confirmed that he is the one who instructed transfer from Stanbic. This effectively ended his case against Stanbic.

24. On Cross Examination by Mr. Wafula on behalf of KCB. He stated there was no problem for the 1st defendant to open an account at KCB. He confirmed he had no claim over the money at KCB. He stated that he deposited the first deposit, though he had no evidence. He said he had no evidence of being swindled by the banks.

25. The 1st Defendant testified that the money in Stanbic was hers. She stated that the money for the purchase of the car came from partly KCB and Stanbic. The purchase of land was not successful. The payment for land was to Jane Wanjiru Nderitu and they did not ask for a refund. She recognised the agreement dated 20/4/2021 at page 295 – 297. This was payment of the car.

26. It is the Plaintiff who instructed 6,000,000 to be sent to KCB. I was surprised none wanted to execute the warrant in situ when the defendant came to court.

27. On 18/7/2023 the other defence witnesses testified. Esther Maru testified on behalf of the 2nd Defendant. Adopted her statement and produced Exhibits 1 – 25. The statement dated 18/4/2023 was to the effect that she did not know the couple. They came to her after being referred as someone known to her.

28. She stated that the Plaintiff was not fluent in English. They settled for Mansa X find which is a successful Global Multi Asset Strategy find regulated and domiciled in Kenya. According to her the Plaintiff always signed his emails as Joyce and Jurgen. She stated that funds were received as follows: -a.Ksh. 25,728,000/= in Euros from Germany to the 1st account (02929).b.Ksh 25,575,000/= from the 3rd Defendantc.A third account was opened for Ksh. 12,700,000 in Euros from Germany.d.Ksh 6,000,000/= was sent out KCB on the Plaintiff and 1st Defendant’s instructions. No issues were raised from the said date to the date of filing suit.e.Ksh. 5,000,000/= was withdrawn on 5/10/2021 (page 76 – 77 of 2nd Defendants bundle.

29. She stated that investments are intact except Ksh. 11,000,000 which were transferred to KCB, the 4th Defendant on cross examination. She stated that the Plaintiff did not ask for a joint account. On cross examination by 3rd defendants advocate they state they have no claim against the 3rd defendant.

30. On cross examination by the Plaintiff she stayed that the duo, Plaintiff and 1st Defendant came together on opening of the account. They were using Germany and the 1st Defendant translated to English for her sake. She relied on the 1st defendant’s translation which she could not confirm whether it was accurate. The communication was later carried out using a translation software. They never communicated with the 1st defendant. The purpose of the account was investment and it was not indicated as a gift. The sums standing in the 2 accounts as at 30/6/2023 were: -a.Account 2859 – 35,784,059. 49 as at 30/6/2023. b.Account No. 29292 – Ksh. 35,450,102. 31 as at 30. 6.2023c.Account NO. 3161 – 2,523,413. 79. d.Ksh. 6,000,000 was transferred by the Plaintiff and 1st defendant to the Plaintiffs account Held at KCB Malindi.e.Ksh. 5,000,000 was withdrawn by the 1st Defendant herself.

31. She confirmed that Ksh. 25,5575,000/= came from Stanbic account into account No. 2929. She tried to lie that the Plaintiff did not try to safeguard the accounts when things went south. A letter had already been sent to the investment bank to stop dealings. She conceded that the said letter ought to have raised a red flag since all the money came from the Plaintiff. On re-examination she confirmed that the accounts were in the name of Joyce and she is the one who made the withdraw.

32. DW3, Susan Njoki, adopted her statement. They followed procedure and opened account No. XX2534 on 16/3/2021 and executed instructions as per mandate she stated that the bank had no contractual obligation to the Plaintiff. They were instructed to transfer Ksh. 25,575,000 to Standard Investment Bank, the 2nd defendant on 31/5/2021.

33. They executed the instructions and transferred the money. A sum that remained in the account was Ksh. 805,549. 20. the said amount remained pursuant to the injunctive orders that were issued and remain in situ till the determination of the suit.

34. She was not cross examined by the other Defendants. On cross examination by the Plaintiff, she stated that the account holder is the 1st defendant. Therefore, they institutions had to come from the 1st defendant. They were sending a copy to the plaintiff, since the accounts holder gave his email account. The duo came together but the Plaintiff was not understanding English.

35. The 4th Defendants witness Hendriter Mghanga adopted her statement dated 23/5/2023, which was to the effect that there was no case against the 4th defendant. They simply opened an account in course of their banking business. In the account the Plaintiff is not listed as a beneficiary.

36. On cross examination by the Plaintiff she stated that Ksh. 6,000,000/= was sent from on 23/7/2021 from Standard Investment Bank. A further sum of Ksh.5, 000, 000 /= was sent on 7/10/2021 also Standard Investment Bank Ltd.

37. They received a total Ksh. 11,000,000. A sum of Ksh. 6,832,542 was remaining in the account as at the date of testimony. There were various transfers out and in. They closed their case, I directed the 4th Defendant to file bank statements by dint of Section 176 of the Evidence Act Which they duly did. The statement confirmed that a sum of Ksh. 6,832,542 is due and o wing

Analysis 38. The claim will be dissected into amounts in each of the banks. There is money transferred to KCB, Malindi branch. There is also money transferred from the 2nd and 3rd Defendants. It is noteworthy that a sum of 6,000,000 that was transferred to KCB had been substantially utilised including to pay for rent. It is my considered view that this amount was transferred as a gift. Though the Plaintiff indicated that it was fraudulently done, it turned out that he authorised transfer.

39. There was no negotiation that was on going to purchase anything. Money being a fungible had commingled so much that it was not possible to separate the 6,000,000/= from the 1st Defendant’s money. This money was not given pursuant to any investment. The purpose was unknown.

40. In Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated as follows with respect to incomplete gifts:“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”

41. The amount of Ksh 6,000,000/= was authorised to be sent to the 1st defendant. The place where it was sent was not I any way protected. Unlike all the other accounts, there was no protection given to the KCB Account. Them gift was perfected by transfer and was actually spent without any accountability to the Plaintiff. I hold and find that the character of the account was inconsistent with the concept of trust. I hold and find that the sum of 6,000,000/= transferred and mostly used by the 1st defendant liberally. This was a gift and it is no longer the Plaintiff’s money. I dismiss any claim over the Ksh. 6,000,000/= as the same was a perfected gift to the 1st defendant.

42. The money was already in the 1st defendant’s account .by not giving the purposes and the 1st defendant having been free to spend the same, then there is irresistible evidence that it was a gift.

43. It is my finding that he was unable to displace the presumption that it was a gift. A gift, especially between love birds, is a dicey affair. It sometimes ranges from payment for immoral purposes to outright gift. There was no explanation for the transfer. I therefore hold that the Ksh. 6,000,000/= is irrecoverable. Out of the original 6,000,000 only Ksh. 1,439,280 remained.

44. Though the 1st defendant transferred Ksh. 5, 000, 000/= on 7/10/2021, the same was not raised in pleadings. The Plaintiff did not approve a sum of 5,000,000/=. It was pleaded as part of money thought to be custody of the 3rd defendant but was transferred to the 1st defendant.

45. Though the balance at KCB was Ksh. 6,832,543/=, the other amounts consist of credits and interest. It is my considered view that only 6,000,000/= went out of reach. The sum of 5,000,000/= was transferred by the Defendant without involving the Plaintiff as it was a practice hitherto.

46. Before I depart from KCB, I recall that there were orders by the 1st defendants to surrender motor vehicle registration KDH 456H to the nearest police station. Even a warrant of arrest issued. In order to safeguard the dignity of the court, it is necessary that the concept be purged. The Easiest way to purge it is by a fine.

47. Contempt of the face of the court, I direct that the 1st defendant purge contempt by paying fine to court of a good and lawful sum of Ksh. 200,000/=. This shall be paid to court out of the funds held as the 1st Defendant account at KCB, that is No – 1283974258 held at Malindi branch. This shall be the condition precedent to release of any other funds to the 1st Defendant.

48. Further, the suit against the 4th defendant was unnecessary. I therefore dismiss the suit against the 4th defendant with costs of 222,000/=. The said amount shall be transferred red from funds held as stannic bank together with the 3rd defendant’s costs. The balance from Stanbic bank plc shall be forwarded to the plaintiff’s advocates. This is in addition to 222,000 being transferred to Cootow & Associates Advocates for the 4th Defendant as the 4th Defendant’s costs.

49. The second aspect I need to deal with is transfer of money from the 3rd defendants to the 2nd defendant. All parties agreed that the money belonged the Funds That were transferred to Stanbic Bank belonged to the Plaintiff. They came with instructions from the plaintiff and transfer of his money from Germany. The instructions to transfer to the 2nd defendant was initiated by the Plaintiff. It is my holding that there was no fraud proved against the 3rd defendant.

50. The money remaining in the account, at the third defendant’s bank were also from the plaintiff. The funds therefore belong to the plaintiff. Consequently, there was no fraud in having Stanbic Bank transfer funds to Standard Investment Bank. Stanbic bank acted on lawful instructions from the clients. The injunction orders Had issued against the 1st defendant accessing that account. I shall give directions on this.

51. In regard to the issue of purchase of land, the Plaintiff stated that the same will be dealt with elsewhere. Accordingly, it is not open for this court to determine. In any case, the money is not with any of the parties in this case.

52. Consequently, given that this was on legitimate instructions. The Plaintiff himself confirmed that he had no issue with Stanbic bank. Indeed, the court could have frozen the Account without Stanbic bank being parties. What was required was compliance with Section 176 of the Evidence Act. It provides as doth: -“176. Mode of proof of entries in bankers’ books. Subject to the provisions of this Chapter of this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transaction and accounts therein recorded.”

53. Stanbic bank confirmed that a lawful sum of Ksh. 805,549. 20 together with accrued interest is available. This amount belongs to the Plaintiff. It should be sent to the Plaintiff subject to issue of costs.

54. I have so far found that the 3rd defendant acted on lawful instructions. I find that the 1st defendant is entitled to keep the 3rd defendant fully indemnified for the transfer.

55. However, the 3rd defendant was not a necessary party to suit. The ownership of the money could be determined without the 3rd defendant. The real issues in controverting were between the Plaintiff and the 1st defendant. Consequently, I find that the Plaintiff shall bear costs of the 3rd defendant for suing them in a case they had no interest in. Already the transfer that he indicted to be fraudulent was indeed done properly.

56. I dismiss the case against the 3rd defendant with costs of 583,625. They shall be borne out of funds held at Stanbic bank Ltd. The said amount shall be transferred to Daly Inamdar Advocates LLP for the 3rd defendant.

57. The case of the 2nd Defendant is different from the others. The 2nd defendant had duo instructions. They carried out instructions meticulous. They invested prudently. The funds are still available I am inclined to allow the case against the 2nd defendant, I do not find any fraud on their part. Those finds belong wholly to the Plaintiff. The funds already transferred were out save for Ksh 5,000,000/= properly transferred with instructions of the plaintiff. The 5,000,000/= was also transferred by the account signatories. None of the issues raised amount to fraud.

58. In the circumstances, I order that the 2nd defendant do transfer all the funds they are holding to the Plaintiff less costs and tax due. The tax is due as the investment was done by a Kenya National. However, the transfer is being done to a non–resident consequently the amount carried must be subjected to necessary tax.

59. The 2nd defendant shall have costs of Ksh.1,250,000/. They shall be deducted from the funds held by the 2nd defendant and transmitted to the firm of Ms Akello Karuga & Company Advocates the balance before releasing to the Plaintiffs advocates, Ms Waithera Thuo & Associates Advocates.

60. I allow the rest of the case against the 1st defendant as aforesaid. The 1st defendant was stealing a match from the Plaintiff knowing that all the money the accounts at the 2nd and 3rd defendant’s banks belonged to the Plaintiff.

61. However, this is expected of jilted lovers. What they have done to each other is should be enough. In order not to bury the little flames or embers of love left flickering dimly, the Plaintiff and 1st defendant will bear their own costs.

Determination 62. The upshot is that I make the following orders: -a.The 2nd and 3rd and 4th Defendant did not defraud the Plaintiff.b.The1st defendant did not defraud the Plaintiff. However, the money invested in Stanbic bank, Account No. 010000792534 and Standard Investment Bank were held in trust for the Plaintiff.c.The funds remaining in Standard Investment Bank belong to the Plaintiff. Subject to the orders herein. I direct that All the accounts referred to herein at KCB, Stanbic bank and the three accounts at Standard Investment Bank in the name of the 1st defendant be closed.n.I find that the Plaintiff was the rightful and beneficial owner of the 200,305 Euros transferred to the 1st defendant’s bank account No. 0100007992534 at Stanbic Bank Limited.o.I find that the Plaintiff was the rightful and beneficial owner of the 300,457. 50 transferred to the 1st defendant’s bank account No. 50122002859 Standard Investment Bank Global Market Client Account at Standard Investment Bank the 2nd defendant.p.I find that the Plaintiff is the rightful and beneficial owner of account held under client code 002859 for an investment of Ksh. 25,728,000/=; client code 003161 for an investment of Ksh. 12,700,000/= and client code 002929 for an investment of Ksh. 25,575,000/= with the 2nd defendants Mansa – X Fund Investment and that the same is held in trust of the Plaintiff less amounts of 11,000,000/= transferred to KCB together with interest and benefits standing therein.q.I decline to find that the Plaintiff has a claim over 6,000,0000 transferred to from Bank Account No. 50122003161 held with the 2nd defendant and personal account No. 1283974258 in the name of the 1st defendant at the 4th defendant. I find and hold that the said amounts were a gift and belonged to the 1st defendant absolutely.r.I find that the Plaintiff has a claim over 5,000,0000 transferred to from Bank Account No. 50122003161 held with the 2nd defendant and personal account No. 1283974258 in the name of the 1st defendant at the 4th defendant. I find and hold that the said amounts were not a gift and belonged to the plaintiff and should, subject to costs, be transferred to the Plaintiff.s.The 1st Defendant is the rightful and beneficial owner of motor vehicle Registration No. KDH 456H and was a gift that was perfected by registration.t.The sum of Ksh. 34,480,102. 31 together with any accrued interest and benefits in Account No. 2929 is held in trust for the Plaintiff. The said account be closed and funds transferred to the Plaintiff subject to payment of Requisite taxes and costs as stated below.u.Account No. 3161 is held in trust for the Plaintiff. The same had 2,523,413. 79 as at 30/6//2023. The said account be closed and funds be transferred to the Plaintiff subject to payment of taxes.v.Account No. 2859 in the name of the 1st defendant with 35,784,054. 49 as at 30/6/2023 is held in trust for the Plaintiffs. The said account be closed and transferred to the Plaintiff subject to payment of taxes and costs.w.A sum of Ksh. 6,000,000 was properly transferred to the 1st defendant. It is a complete gift and as such it is not refundable. A sum of Ksh. 5,000,000 was transferred by the 1st Defendant without involving the Plaintiff as such it is not a gift. The 4th defendant to transfer a lawful sum of Ksh. 5,000,000/= to the Advocates representing the Plaintiff for onward transmission.x.A sum of Ksh. 805,549. 20 together with accrued interest that is applied to the account be transferred to the Plaintiff his Advocates less the 3rd defendant’s costs. For accounting purposes, the costs be transmitted to the 3rd defendants Advocates and the account be closed. The suit against the 4th defendant is consequently dismissed.y.Nevertheless, the 1st defendant hitherto failed to comply with the court order she is accidently fined Ksh. 200,000 /=which shall be deducted from her KCB account 1283974258 held at Malindi branch by 4th defendant and banked in the courts fines account. Upon fine being paid the orders stopping dealings in that accounts shall stand lifted.z.The suit against the 2nd defendant is dismissed with costs of Ksh. 1,250,000/=. The shall be deducted from the funds held by the 2nd defendant and transmitted to the firm of Ms Akello Karuga & Company Advocates, before releasing to the Plaintiffs advocates, Ms Waithera Thuo & Associates Advocates.aa.I dismiss the case against the 3rd defendant with costs of 583,625. They shall be borne out of funds held at Stanbic bank Ltd. The said amount shall be transferred to Daly Inamdar Advocates LLP for the 3rd defendant.ab.Costs of costs of 222,000/= to the 4th Defendant payable out of funds held at Stanbic bank Ltd to be transferred to Cootow and Associates Advocates.ac.The 1st defendant to bear her own costs.ad.The motor vehicle registration KDH 456 H was a gift which was perfected by registration and partly financed by the 1st defendant. The claim for KDH 456 H it is accordingly dismissed.ae.I decline to deal with the claim over land as none of the parties placed it before the Court for determination, it shall be dealt with elsewhere.af.I decline the rest of the prayers.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. Waithera for the PlaintiffMr. Akello for the 1st DefendantMrs. Akwana for the 3rd DefendantMs Kasyoka for the 1st DefendantMs Osewe for the 4th Defendant