PARAMOUNT UNIVERSAL BANK LTD & another v HALIFAX ESTATE AGENCY LTD & another [2010] KEHC 737 (KLR)

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