[1999] KEHC 159 (KLR)
The court found that the plaintiff, as the owner of the suit, had unequivocally indicated its intention not to pursue the matter further, effectively conceding that the suit had been wholly settled by agreement of the parties. The first defendant, not being the plaintiff, could not continue the suit or oppose its...
Source-derived case information.
- Citation
- [1999] KEHC 159 (KLR)
- Parties
- Plaintiff: Standard Chartered Bank Ltd; Defendant: Overseas Forex Bureax Ltd; Defendant: Ougo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3004 of 1996
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Settlement and Costs
- Outcome
- Application by second defendant allowed; suit declared settled; costs awarded to second defendant.
- Legal Topics
- Compromise of Suit, Injunctions, Bankers Draft Fraud, Settlement Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Standard Chartered Bank Ltd
Plaintiff
Overseas Forex Bureax Ltd
Defendant
Ougo
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Settlement and Costs
Legal Issues
- 1 Whether the suit was wholly compromised and settled by agreement of the parties.
- 2 Whether the first defendant can oppose the settlement and continue the suit.
- 3 Entitlement to costs following settlement.
Ratio Decidendi
The court found that the plaintiff, as the owner of the suit, had unequivocally indicated its intention not to pursue the matter further, effectively conceding that the suit had been wholly settled by agreement of the parties. The first defendant, not being the plaintiff, could not continue the suit or oppose its settlement, as it had no standing to do so. The court further held that any dispute regarding interest accrued on the deposited funds was not addressed in the settlement order and would have to be pursued in a separate forum. Accordingly, the court granted the second defendant's application, declared the suit settled, and awarded costs of the application to the second defendant.
Court Disposition
Application by second defendant allowed; suit declared settled; costs awarded to second defendant.
Orders
- The suit is declared wholly settled by agreement of the parties.
- The second defendant is awarded the costs of the application.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 3004 OF 1996
STANDARD CHARTERED BANK LTD.......................PLAINTIFF
VERSUS
OVERSEAS FOREX BUREAX LTD............................DEFENDANT
R U L I N G
At the centre of the proceedings was a bankers draft in the sum of kshs. 5,650,000/-. This sum was credited to account No.229737089 owned by the first defendant and held with the second defendant.
It turned out that the plaintiff’s instructions to deposit the sum aforesaid were a fraud. The money had however been deposited per instructions.
The plaintiff then instituted a suit demanding the sum of kshs. 5,650,000/- as belonging to it. There was also a prayer for an injunction to restrain the disposal of the money pending the determination of the suit. In the alternative, the plaintiff sought an order that the said monies be placed on deposit to earn interest.
Alongside the plaint, the plaintiff filed an application for an injunction by way of chamber summons upon which interim orders were granted.
When the application came up for hearing inter partes, an order was recorded in the following terms:-
“1 That the injunction granted by this Honourable Court on the 4th day of December, 1996 be and is hereby lifted.
2 That the 1st defendant do immediately release and mandate the 2nd defendant to pay the sum of kshs. 1,750,000/- to the plaintiff.
3 That the suit be set down for hearing by the parties taking a date at the registry.
4 That the costs of this application be in the cause.”.
By an application dated 14th August, 1998, the learned counsel for the second defendant moved the court for orders this suit has been adjusted and wholly settled by agreement of partes and that the costs of the suit and of this application be awarded to the second defendant. The said application which is by way of Notice of Motion under Order 24 Rule 6 of the Civil Procedure Rules is based on the affidavit of the learned counsel for the second defendant and the ground that the suit was wholly compromised by a lawful agreement made between the parties on 15th January, 1997.
The plaintiffs counsel filed grounds of opposition and a replying affidavit in which the orders sought were opposed. However when the application came up for hearing, the learned counsel for the plaintiff conceded the application as the plaintiff does not wish to persue the matter any move.
The first defendant however opposes the application and I have on record grounds of opposition and a replying affidavit. I also have the submissions of counsel appearing for the respective parties.
After the order of 15th January, 1997, the advocates for the plaintiff wrote to the advocates for the second defendant with reference to the said court order to the effect that after payment of the sum of kshs. 1,750,000/- to the plaintiff, the balance may be released to the first defendant. The letter giving those instructions is date 4th February, 1997 the advocates for the second defendant executed those instructions by writing to both the advocates for the plaintiff and the first defendant. Acknowledgments followed but the advocates for the first defendant asked to be advised on the interest accrued.
The order of 15th January, 1997 did not address the issue of interest. However the order given on 4th December, 1996 directed that the monies be placed on deposit to earn interest. It did not direct in whose credit that interest should be. That being the case any party claiming the same share have to find another forum to agitate the same.
A suit is the property of the person or party who institutes the same.
Here it is the property of the plaintiff. The plaintiff has intimated to the court it does not wish to go on with the matter. In effect the plaintiff agrees, the suit has been wholly settled by agreement of the parties. The first defendant may not agree, but there is no way it can step into the shoes of the plaintiff and carry its mantle.
I find that the application must and hereby succeeds. The second defendant shall have the costs of this application.
Orders accordingly.
Dated and delivered at Nairobi this 19th day of February, 1999
A. MBOGHOLI MSAGHA
JUDGE
Nyawara for 1st defendant
Aruwa for Ougo for 2nd defendant
Miss Dar for plaintiff