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ELCOtherELC No. 63 of 2021 (Formerly No. 315 of 2008)· [2022] KEELC 563 (KLR)

Vipin Manganlal Shah & another v Hamadi Mwakibibo Juma [2022] KEELC 563 (KLR)

Environment and Land Court
25 March 2022
1,972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Kwale declined to release a consent order because the real fight was over Kshs. 13.5 million in a joint account, already before another court.

What this practically means

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Executive summary

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This is a directions ruling of the Environment and Land Court at Kwale (A.E. Dena, J) in ELC No. 63 of 2021, formerly HCCC No. 315 of 2008, arising from a consent recorded on 11th June 2010 and adopted by the court on 14th June 2010 (before Justice Mohamed Ibrahim, as he then was). Under the consent, the Plaintiffs deposited Kshs. 13,500,000 in a joint interest-earning deposit account between the parties' advocates, pending final determination of HCCC No. 211 of 2006 (Seaview Investments Limited v Hamadi Juma Mwakibibo & Others) upholding the Plaintiffs' proprietary rights over Kwale/Diani Beach/203 with finality. The deposit was made but the consent order was never extracted. Mr. Oddiaga, the Defendant's advocate (and himself a party to related litigation), sought extraction of the consent order; Mr. Kagram, for the Plaintiffs, objected, pointing to a related pending suit (HCCC 134 of 2012, Mombasa) in which the Defendant dis-instructed Mr. Oddiaga, and to an RTGS showing payment of Kshs. 8 million in fees. Mr. Oddiaga asserted a lien over the funds for outstanding professional fees allegedly totalling Kshs. 14,932,424, and had already sued Mr. Kagram's firm in Mombasa HCC 119 of 2018 seeking release of the fixed deposit of Kshs. 23,796,998.36. The court held the real issue was release of the joint-account funds, which should properly be litigated in HCC 119 of 2018. It declined to order immediate extraction, letting matters stand pending that suit. No costs order appears in the ruling.

Key legal issues

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01

The true nature of the dispute behind the request to extract the consent order

Holding

The directions were not merely about extraction of the consent order but about release of the joint-account funds on which counsel claims a lien for unpaid professional fees.

Reasoning

The court examined the submissions and affidavits and found that the request to extract the consent order was a device in the wider contest over the Kshs. 13,500,000 deposit, with Mr. Oddiaga asserting a lien for fees totalling Kshs. 14,932,424 allegedly owed by Mr. Mwakibibo across several matters. The consent itself was not in dispute; the contest was over the funds it generated.

p. 2
02

The proper forum for determining release of the joint-account funds

Holding

All issues as to release of the funds should be litigated in Mombasa HCC 119 of 2018, where Mr. Oddiaga has already sued for the fixed-deposit amount.

Reasoning

Mr. Oddiaga had himself filed HCC 119 of 2018 claiming Kshs. 23,796,998.36 including release of the fixed deposit. The court held that since counsel had chosen that forum to litigate the release of the funds, no prejudice would arise from staying the present request pending its outcome.

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A litigant's entitlement to an extract of a court order

Holding

The court acknowledged the general entitlement but declined to exercise it in the circumstances, holding matters in status quo.

Reasoning

The court accepted the general principle that a party is entitled to an extract of any order made in proceedings, but exercised its discretion to let matters stand because the substantive contest over the funds - the real purpose of the extraction request - was pending in another competent forum.

p. 3

Legal principles established

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  • While a party to a suit is generally entitled to an extract of any order made in the proceedings, a court may decline to release such an order where the substantive dispute over the underlying funds is properly pending before another forum.
  • Issues concerning the release of funds held in a joint interest-earning deposit account pursuant to a consent order should be litigated in the forum where the party has chosen to litigate them.

Court orders

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  1. 1.Matters to stand as they are pending the determination of Mombasa HCC 119 of 2018 (Stephen Oddiaga t/a Stephen Oddiaga & Co. Advocates v Sanjeev Khagram t/a A. B. Patel & Patel Advocates)
  2. 2.Declined to direct immediate extraction/release of the consent order while the funds dispute is pending before that forum

Authorities

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Cases cited (2)

  • Seaview Investments Limited v Hamadi Juma Mwakibibo & Others
    High Court Civil Case No. 211 of 2006
  • Stephen Oddiaga T/A Stephen Oddiaga & Co. Advocates v Vikram C. Kanji, Sanjeev Kagram & Ano
    Mombasa HCC 119 of 2018
Jurisdiction invoked
Original and supervisory jurisdiction of the Environment and Land Court over a matter formerly being High Court Civil Case No. 315 of 2008, transferred to ELC No. 63 of 2021 (no express constitutional/statutory provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Vipin Manganlal Shah & another v Hamadi Mwakibibo Juma [2022] KEELC 563 (KLR)", Case Analysis (2022). ELC No. 63 of 2021 (Formerly No. 315 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/563/eng@2022-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.