BY SAM ALFAN.
The family of former minister the late Mbiyu Koinange wants Eco Bank compelled to pay them Sh.284 million.
In an application, the family accuses the lender of allowing the withdrawal of the money illegally, against a court order.
The family now wants the bank compelled to return the money with interest.
Through Senior Counsel Paul Muite, the estate further wants the court to order the Eco Bank Kenya limited to disclose and give particulars of amounts and all beneficiaries of any amount of money withdrawn from the said account, pending hearing and determination of the case.
SC Muite told the court that the Estate of the late Mbiyu Koinange sold 100 acres of Closeburn Estate and the money was deposited at Cooperative Bank Limited.
The funds being Sh. 890,000,000 were moved from Cooperative Bank to an account at Eco Bank Limited by the advocates acting for the Administrators of the Estate.
The court thereafter distributed some amounts to the beneficiaries and pursuant to the Court order of Justice David Maraga, CJ (as he then was) dated 26th July, 2011, Eco Bank Limited was directed to hold the balance of Sh.284 million in bank account at Ecobank Towers Branch.
The money was for purposes of settling the beneficiaries as the administrators would apply and the Court would approve, direct or order.
The court heard that the amount held by Eco Bank Kenya Limited was not to be paid out, disbursed, withdrawn moved or otherwise expended without the authority of the court or court Orders.
“Eco Bank Limited irregularly, illegally and without authority of the court or the consent of the applicant herein and in total violation of the court orders issued on 26th July 2011, allowed the funds to be withdrawn to the detriment of the applicant and the entire estate of the late Mbiyu Koinange,” SC Muite told the court
He added that the Court in its Judgement issued on 7th May 2020 confirmed that there was no plausible explanation by any of the advocates on why Sh.284 million should not be paid back to the Estate of Mbiyu Koinange.
“The applicant being an administrator and beneficiary of the Estate of Mbiyu Koinange is entitled to her share of the sum of Sh.284,000,000 and the entire Estate of Mbiyu Koinange is entitled to the sum of Sh.284,000,000 which the court has directed should be shared equally between the identified beneficiaries,” court heard.
Eddah Wanjiku Mbiyu who is one the administrators told the court that the administrators of the estate of the late Mbiyu Koinange through the court sold 100 acres of Close burn estate.
The property was sold for Sh.1,160,000,000 and the money was partially distributed by the court on 28th May 2010 and the balance of Sh. 890,000,000 deposited in Cooperative Bank limited.
She stated in an affidavit that the money was later moved to Ecobank limited by the advocates of the administrators who were operating the account without the knowledge of the administrators.
The court subsequently distributed some amounts to the beneficiaries leaving a credit balance of Sh. 284 million the former CJ Maraga through orders issued on 26th July, 2011, directed that the balance of Sh. 284 million to be held by the Ecobank Ltd and was not to be paid out without a Court Order.
“It later came to my knowledge that Eco bank illegally and irregularly without the permission of the court caused the entire sum of Sh.284 million to be withdrawn,” Eddah further told the court.
She added that as a beneficiary of the Estate I am entitled to my share of the Sh.284 Million plus interest which the court has found is owed to the Estate of the late Mbiyu Koinange.
“As an administrator of the Estate I have a duty to ensure that the beneficiaries get their share of Sh.284 million which the court found should be shared by all identified beneficiaries. Eco Bank failed in its fiduciary duty to the Estate of the late Mbiyu Koinange by allowing the funds to be withdrawn without a court order despite the fact that the funds were deposited into the bank account vide a court order,” Eddah told the court.
SC Muite told Justice Ogolla Ecobank admits as shown in the account opening forms it was aware the money belonged to the estate of a deceased person.
He added that under the law of Succession Act, a court order was necessary before any withdrawals whether or not it had been served with the court order.
“In any event due diligence by the bank made it imperative for the bank to demand for court order as a condition for opening the account,” SC Muite told the court.
