[2023] KEHC 25220 (KLR)

Wambugu v Disciplinary Tribunal of Law Society of Kenya & another (Civil Appeal E020 of 2021) [2023] KEHC 25220 (KLR) (Civ) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25220 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E020 of 2021

AN Ongeri, J

November 10, 2023

Between

John Wacira Wambugu

Applicant

and

The Disciplinary Tribunal of Law Society Of Kenya

1st Respondent

Monica Wanjiku Ngugi

2nd Respondent

Ruling

1. The application coming for consideration is the one dated February 24, 2023 seeking the following orders;i.This application be certified urgent and be dispensed with in the first instance.ii.This honourable court do issue an order of reconciliation of all the 2nd respondent’s accounts with the appellant’s including current accounts to scrutinize and discern the true position of the amount of money paid and money owed to the 2nd respondent by the appellant pending hearing and determination of the appeal.iii.This honourable court do issue an order of supply of certified copies of the bank statements of the 2nd respondent’s account with the appellant including current accounts.iv.Pending the hearing and determination of this suit, an order of injunction be granted restraining the 2nd respondent, whether acting by himself or through his agents, assigns or representatives from executing, proclaiming the appellant’s property or recovering any costs of sums owed to the respondent by the appellant.

2. It is based on the following grounds;i.That the 2nd respondent lodged a complaint against the appellant before the 1st respondent, resulting to Disciplinary Tribunal Cause No. 79 of 2013ii.That following discussions with the Chief Executive Officer of the Law Society of Kenya that aimed at assisting the 2nd respondent and the appellant to conduct a joint account reconciliation, it was agreed that the appellant deposit a sum of kshs.1,200,000/= before the accounts reconciliation was done.iii.That the appellant has since deposited the sum of kshs.1,200,000/= with the Law Society of Kenya in good faith to enable the parties conduct a smooth joint account reconciliation.iv.That the appellant have since deposited an extra amount of kshs.2,000,000/= to the Law Society of Keya to further comply with the court orders issued on 24th February 2021. v.That the amount of kshs.11,900,000/= is disputed since the deposits have not been acknowledged by the respondents.vi.That the parties are still yet to confirm this contentious figure owing to the reluctance, laxity and trepidation of the 2nd respondent to conduct the joint account reconciliation.vii.That the 2nd respondent has refused to acknowledge the sum of the remaining balance paid out by the appellant to the 2nd respondent directly.viii.That the 2nd respondent has denied the appellant an opportunity to reconcile the account, and determine the exact amount paid out by the appellant and the money owed, if any.ix.That the appellant is apprehensive that the 2nd respondent might go for execution.x.That if the court fails to issue a mandatory order instructing the parties to take the joint account reconciliation, the appellant shall be condemned unheard, over an amount of money that is in contention and has not been accounted for.xi.Finally, THAT the appellant herein is subject to substantial loss in the event that the 2nd respondent proceeds to institute execution proceedings.

3. The application is supported by the supporting affidavit of the applicant/appellant sworn on 24/2/2023.

4. The respondents filed a replying affidavit dated 15/3/2023 opposing the Appellant’s application.

5. The parties filed written submissions which I have duly considered.

6. The issues for determination are as follows;i.Whether this court should issue an order of reconciliation of all the 2nd respondent’s accounts with the appellant’s including current accounts to scrutinize and discern the true position of the amount of money paid and money owed to the 2nd respondent by the appellant pending hearing and determination of this appeal.ii.Whether this court should issue an order for supply of certified copies of the bank statements of the 2nd respondent’s account with the appellant including current accounts.iii.Whether an order of injunction should be granted restraining the 2nd respondent, whether acting by himself or through his agents, assigns or representatives from executing, proclaiming the appellant’s property or recovering any costs of sums owed to the respondent by the appellant pending the hearing and determination of this appeal

7. I find that the Application dated 24/02/2023 is seeking an order of reconciliation of all the 2nd respondent’s accounts with the appellant’s including current accounts to scrutinize and discern the true position of the amount of money paid and money owed to the 2nd respondent by the appellant pending hearing and determination of this appeal.

8. The Applicant is also seeking an order of injunction restraining the 2nd respondent, whether acting by himself or through his agents, assigns or representatives from executing, proclaiming the appellant’s property or recovering any costs of sums owed to the respondent by the appellant pending the hearing and determination of this appeal

9. Since this court gave directions on 30/6/2021, the parties should proceed with the appeal and the issues raised in this application be determined with finality.

10. I direct that the Appellant files and serves the record of appeal within 30 days of this date. The Appellant is granted 90 days to fully prosecute the appeal.

11. The court has already granted stay of execution pending appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ...................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent