[2010] KEHC 737 (KLR)
The court found that the 2nd defendant, as auctioneer acting for both plaintiffs and the 1st defendant, was under a clear duty to render a full account of the goods sold and the proceeds realized. The 2nd defendant had failed to provide an explanation for only forwarding a partial sum and had not rendered any...
Source-derived case information.
- Citation
- [2010] KEHC 737 (KLR)
- Parties
- Plaintiff: Paramount Universal Bank Ltd; Plaintiff: Bulk Medicals Limited (In Receivership and Acting by its Receivers and Managers); Defendant: Halifax Estate Agency Ltd; Defendant: M.N Kanyi t/a Panama Rovers Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 539 of 2006
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Deposit of Sale Proceeds and Account
- Outcome
- Application allowed as prayed; orders granted for deposit of proceeds and accounting.
- Judges
- FI Koome
- Legal Topics
- Distress for Rent, Auctioneer Duties, Accounting of Sale Proceeds, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paramount Universal Bank Ltd
Plaintiff
Bulk Medicals Limited (In Receivership and Acting by its Receivers and Managers)
Plaintiff
Halifax Estate Agency Ltd
Defendant
M.N Kanyi t/a Panama Rovers Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Deposit of Sale Proceeds and Account
Legal Issues
- 1 Whether the 2nd defendant should be compelled to deposit all sale proceeds realized from the disposal of the 2nd plaintiff's attached goods in court.
- 2 Whether the 2nd defendant should be ordered to deliver a true and accurate account of all goods sold and proceeds realized.
Ratio Decidendi
The court found that the 2nd defendant, as auctioneer acting for both plaintiffs and the 1st defendant, was under a clear duty to render a full account of the goods sold and the proceeds realized. The 2nd defendant had failed to provide an explanation for only forwarding a partial sum and had not rendered any account, despite a prior consent order permitting the sale of perishable goods. The application was unopposed and supported by the 1st defendant. The court held that the orders sought were necessary to ensure accountability and transparency in the handling of sale proceeds by the auctioneer. Accordingly, the court allowed the application, ordering the 2nd defendant to deposit all...
Court Disposition
Application allowed as prayed; orders granted for deposit of proceeds and accounting.
Orders
- The 2nd defendant shall deposit all sale proceeds realized from the disposal of the 2nd plaintiff's attached goods in court within 30 days.
- The 2nd defendant shall render a true and accurate account of all goods sold and proceeds realized upon sale.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL AND TAX DIVISION
CIVIL CASE NO. 539 OF 2006
PARAMOUNT UNIVERSAL BANK LTD……………1ST PLAINTIFF
BULK MEDICALS LIMITED
(IN RECEIVERSHIP AND ACTING BY ITS RECEIVERS
AND MANAGERS)…………………….. ……...……….2ND PLAINTIFF
VERSUS
HALIFAX ESTATE AGENCY LTD…………………1ST DEFENDANT
M.N KANYI T/A
PANAMA ROVERS AUCTIONEERS ………………2ND DEFENDANT
RULING
1On 30th June, 2006, the 2nd defendant acting on instructions of the first defendants levied distress for rent on the 2nd plaintiff’s business premises situated on West Vision House. The 2nd defendant issued a proclamation on the 2nd plaintiff’s properties and assets which were already charged in favour of the 1st plaintiff. The 2nd defendant carried away the 2nd plaintiff’s goods which were perishable. The plaintiffs thus filed a suit seeking inter aliafor an order of injunction to restrain the 2nd defendant from proceeding with the sale of the goods attached.
2 Parties realized the attached goods were perishable and by a consent dated 15th July, 2007, the 2nd defendant was permitted to proceed with the sale of the attached property as an auctioneer for both the plaintiffs and the 1st defendant. The second defendant was to inform the instructing clients of every step taken towards the sale they were also to deposit the proceeds of the sale in an interest earning account. However, the 2nd defendant only forwarded a sum of Ksh. 279,427/55 without any explanation. The 2nd defendant has also not given an account.
3. The plaintiffs filed a Notice of Motion dated10th June, 2008 seeking for the following orders:-
(a)The 2nd defendant be compelled to deposit in this honourable court all the sale proceeds realized upon the disposal of the 2nd plaintiff’s attached goods within such time as may be specified by this Honourable Court.
(b)The 2nd defendant be ordered to deliver a true and accurate account of all the goods sold and the proceeds realized upon sale.
This application was not opposed by the 2nd defendant it was supported by the 1st defendant, the plaintiffs and 1st defendant’s advocates filed written submission there are no submissions by the 2nd defendant.
4. Accordingly this application is not opposed it is also seeking for orders which are necessary as the 2nd defendant being an auctioneer who was acting on instructions from both the plaintiffs and 1st defendant had a duty to render accounts to the instructing clients. The application is allowed the 2nd defendant is given 30 days within which to deposit the money from the sale proceeds in court and to render a true and accurate account of the goods sold. The applicants shall have the costs of this application as against the 2nd defendant.
RULING READ AND SIGNED THIS 22ND DAY OF OCTOBER, 2010
MARTHA KOOME
JUDGE