BY SAM ALFAN.
High Court has ordered EcoBank (K) ltd to provide three Kenyans who are involved in pull and push over control of Kiwipay Kenya ltd with statement of three Bank accounts.
Justice Alfred Mabeya who last week directed all matters relating to Kiwipay Kenya ltd be heard within 120 days directed the lender to furnish Stephen Maina, Felix Rantuu and Solomon Maina Bank statement within seven days.
In his ruling, Judge Mabeya found that the three have established a prima facie case and that EcoBank may have permitted the operation of the accounts of the nominal Kiwipay Kenya in a manner detrimental to it.
“The upshot is that the application is meritorious and is allowed as prayed. The bank statements be provided within 7 days of the date of this ruling. The costs shall be in the suit,” ordered Judge Mabeya.
They claimed that claim that the mandate given was that they were as joint signatories to the nominal Kiwipay’s bank accounts and that transactions were to be by way of cheques or over the counter withdrawals and despite as such, EcoBank still permitted transactions through internet banking thereby allowing the majority shareholder to singlehandedly transact over USD 10 million from the nominal defendant’s accounts.
It was thus pleaded that EcoBank and Kiwipay was allegedly in breach of the bank-customer relationship and had committed fraud against it. This cause of action as against the Bank and the company was successfully pleaded, particularized and established by the three in the plaint dated 5th of December 2022.
The Kenyans said the bank maintained that there was a resolution allowing the transaction through internet banking yet the company had not passed such a resolution authorizing internet banking.
They argued that despite demands, the Bank had failed to provide them with the bank statements to conceal the financial loss suffered as the monies held in those accounts was not for personal use but property of the nominal Kiwipay Kenya ltd.
The judge agreed with the Kenyans that they were acting in good faith by bringing a derivative suit, as director to promote the success of the company.
Schmidt had opposed the application saying he was the director of KiwiPay PTE Limited, the majority shareholder in Kiwipay (K) ltd. He also denied any breach of the banker-customer relationship on the part of the bank.
He said until the consent order in November last year, the Kenyans were not directors or shareholders in Kiwipay (K) ltd and could not make any resolutions or enforce obligations on the bank.
According to the Frenchman, KiwiPay PTE initially held 51 percent of the Kenyan company, Monthda Rashi 20 percent, while the Kenyans held 7.5 percent each. But they later resigned as directors leaving him and KiwiPay PTE ltd as the only shareholders.
