Trust Bank Limited v Patel & 3 others

4. Mr. Thomas Osama deposed that this application precipitated from the judgement of the High Court at Nairobi in Civil Case No. 875 of 2001. The suit led by the applicant was dismissed and the costs thereon were assessed in the sum of Kshs.17, 002, 770/= (the costs) in favour of the 1st respondent. Being dissatised with the said judgement, the applicant led before this Court Civil Appeal No. 16 of 2015 and the instant application. In its application, the applicant sought stay of execution of the order of the said costs pending the hearing and determination of the appeal. 5. In order to compromise the stay application, the applicant and the 1st respondent through their respective counsel, led a consent on 24th October 2012. The terms of the consent were that the applicant would deposit a sum of Kshs.17,000,000/= in a joint account with Guardian Bank in the names of counsel for the applicant and the 1st respondent within 14 days, failure to which execution would issue. The consent was adopted as an order of this Court. 6. Mr. Osama further deposed that the rm of advocates who had held out themselves as acting for the 1st respondent that is, LJA Associates and Mukite Musangi Advocates, led an application dated 23rd October 2019, seeking that the money held in the joint account be released to LJA Advocates, as counsel for the 1st respondent. The applicant opposed the application and its main contention was that the circumstances seemed to suggest that the 1st respondent is deceased. The applicant also contended that the said advocates had no authority to act on behalf of the 1st respondent. The applicant further posited that the present application is an ancillary to the ndings of this Court on the 1st respondent’s application dated 23rd October 2019 vide its ruling dated 4th February 2022. We shall revisit the ndings of this Court’s ruling later on. 7. The applicant contends that the 1st respondent is deceased, and that the consent terms entered into on 24th October 2012 were based on non-material disclosure of facts, mainly that the 1st respondent is deceased and incapable of operating the account in his name. 8. The application came up for hearing virtually before us on 17th July 2023. Learned counsel Mr. Oyatsi appeared for the applicant while learned counsel Mr. Adano appeared for the 2nd and 4th respondents. The latter counsel informed the Court that the application did not concern his clients. There was no representation for the 1st and 3rd respondents. None of the respondents led their respective responses. 9. Mr. Oyatsi submitted that this application is supplemental to the previous application, which was before this Court, where a nding was made that the 1st respondent is deceased, and the counsel who appeared in Court on behalf of the 1st respondent had no instructions. On the reasons as to why the applicant believes that the 1st respondent is deceased, learned counsel submitted that they were acting on the presumption that the 1st respondent is deceased since he has never participated in the proceedings in the High Court from the trial to the instant proceedings before this Court. 10. Mr. Oyatsi further submitted that he was not certain when the 1st respondent died, but that in the previous application before this Court, the issue was addressed. He submitted that the ruling of this Court found that it was upon the counsel for the 1st respondent to give the existence or otherwise of the status of his client. When asked by the Court why no citation proceedings have been taken up, he referred the Court to paragraph 8 of this Court’s ruling of 4th February 2022, and submitted that if an application is not made within 12 months from the date of the deceased person’s demise, or their legal representatives made a party to the appeal, the appeal abates. He submitted that the existence of the 1st respondent is a matter of special knowledge within the 1st respondent’s counsel, and it is his counsel who should give the Court that information. Counsel contended that no counsel from the rm of LJA https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1664/eng@2023-12-08 2

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Associates who sought the release of the funds has sworn an adavit conrming the existence of the 1st respondent. 11. Counsel urged this Court to release the money held, as this was an account created specically on their application for stay. He stated that in the event that there is an administrator of the estate of the 1st respondent, or if the 1st respondent is alive, either of them as the case may be, has the right to pursue the applicant for recovery of the money. He submitted that he does not have any last known address of the 1st respondent who is a former ocer of the applicant which is now in liquidation. 12. We have considered the application, the written and oral submissions of the applicant. Our onerous duty is to determine whether the applicant has made out a case for setting aside the consent order dated 24th October 2012. 13. The application by the applicant is based on the fact that the consent order dated on 24th October 2012 was entered into fraudulently, on material non-disclosure of facts, and in particular that the 1st respondent is deceased. On that basis, the applicant argued that the consent ought to be set aside and the sum of Kshs. 17, 002, 770/= deposited with Guardian Bank Limited, pursuant to the consent terms in the names of Shapley Barret Advocates and LJA Associates Advocates together with all the accrued interest, be released to Shapley Barret Advocates on behalf of the applicant. 14. The guiding principles on setting aside a consent order was set out by the then East Africa Court of Appeal in the case of Hirani vs. Kassam (1952) EACA 131 which held that: “Prima facie, any order made in the presence and with consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ....and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the Court .... Or, if the consent was given without sucient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the Court to set aside an agreement.” 15. It is instructive to note that the applicant anchors its application on the ruling of this Court dated 4th February 2022. The application which gave rise to this ruling was led on behalf of the 1st respondent by the rm of Mukite Musangi Advocates. The 1st respondent asked this Court to release the money held in the joint account to LJA Advocates on his behalf. The applicant raised the same issues being raised herein that it believes that the 1st respondent is deceased; hence no orders can be made in his favour. The applicant also contended that the counsel representing the 1st respondent in their application of 29th October 2019 had no authority to do so. 16. This Court’s ruling of 4th February 2022 noted that Mr. Mukite Musangi, counsel who had sworn the adavit on behalf of the 1st respondent, did not dispute the allegations raised in the adavit of the applicant concerning the state of his client. In particular, in paragraph 9 which we shall reproduce verbatim, it was noted thus: “As rightly observed Mr. Mukite Musangi who led the applicant’s motion has not specically denied the alleged death of applicant. This court has therefore no reason to disbelieve the adavit sworn by Nabori that Vinod is deceased. That being the position, we agree with the Bank that the court has no jurisdiction to entertain an application by the applicant who is a deceased party without his legal representative being made a party. Moreover, the applicant’s advocates have not satised this Court that they have proper https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1664/eng@2023-12-08 3

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instructions to prosecute the applicant’s motion or have authority to release the money to LJA Associates.” 17. In view of the foregoing excerpt, we are unable to agree with learned counsel Mr. Oyatsi that this Court made a decisive nding on the status of the 1st respondent, that is whether he is deceased or not. The Court simply made its observation on the evasive nature of Mr. Musangi in responding to the allegations that his client is deceased. To that end, this Court rightly found that it had no jurisdiction to hear and determine an application by the applicant without his legal representative being made a party to these proceedings. 18. A similar fate befalls the present application. If at all the applicant is convinced, or would like this Court to believe that the 1st respondent is deceased, it ought to have presented evidence in the form of a death certicate which ordinarily, is the document conrming that a person is deceased. Alternatively, the applicant would be obligated, if it so wishes, to commence citation proceedings against the estate of the 1st respondent and/or serve the 1st respondent through substituted service in a widely circulating newspaper. We raise a similar concern as to failure to suciently trace and inform the counsel for the 1st respondent of the position of the matter. Simply stated, the applicant has not suciently demonstrated that it has tried to trace the whereabouts of the 1st respondent. 19. Counsel submitted that from the time the dispute was led in the trial court in the year 2001, the 1st respondent has never participated in the court proceedings. We are of the view that the issue and/or the suspicion of the existence or non- existent of the 1st respondent did not come as a surprise to the applicant. We opine that the trial court would have been the best avenue to ventilate and conrm the true status of the 1st respondent. 20. Besides, it is not within the purview of this Court to nd that the 1st respondent is deceased in an application such as the one before us, whilst there is a proper laid procedure for a person to be presumed dead as per the provisions of section 118A of the Evidence Act. For a person to be presumed dead, it is not a matter of speculation views or feelings, but that facts have to be adduced before the assumption is made and a death certicate issued thereafter. 21. Further to the foregoing, Counsel urged us to nd that the appeal has abated pursuant to rule 99 (1) and (2) of the then Court of Appeal Rules (2010). The said rule is now rule 102 (1) and (2) of the Court of Appeal Rules, 2022 which provides: 102 22. (1) An appeal shall not abate on the death of the appellant or respondent but the Court shall, on application of any interested person, cause the legal representative of the deceased person to be made a party in place of the deceased. (2) If no application is made under sub-rule (1) within twelve months from the date of death of the appellant or respondent, the appeal shall abate. While it is the position that if a party dies, the appeal abates as per rule 102(2), we are of the view and still hold that the applicant has not suciently proved that the 1st respondent is deceased. Be that as it may, even if such evidence was presented before us, we nd that it is not possible for an appeal to abate and/or be revived at this stage, since the appeal was already heard and determined, and a judgement delivered by this Court on 27th September 2019 in favour of the 1st respondent. The abatement and/ https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1664/eng@2023-12-08 4

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or revival of the appeal has been overtaken by events. The only issue at hand is the release of the costs held jointly by counsel for the applicant and the 1st respondent. 23. We are further constrained to add that the applicant has not explained to this Court what prejudice it will suer or continue to suer if the money is held in the joint interest account. This Court upheld the decision of the High Court. It therefore remains that the 1st respondent is entitled to his costs which have been held in the joint interest earning account. It would serve no judicial purpose for the money to be released to the applicant and later on, the 1st respondent either by himself or through his estate, les new proceedings to recover the said costs. It is common knowledge that the applicant is now under liquidation and recovery of the costs would be an uphill task. 24. In conclusion, we nd and hold that the applicant has not suciently demonstrated that the consent order dated 24th October 2012 warrants to be set aside. Accordingly, the application dated 9th February 2022 is unmerited and it is hereby dismissed with no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. H. A. OMONDI .................................... JUDGE OF APPEAL ALI-ARONI .................................... JUDGE OF APPEAL G. W. NGENYE-MACHARIA .................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1664/eng@2023-12-08 5

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