Affidavit

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LOSS COURTS

CIVIL CASE NO. 1474 OF 2000 (OS)

LOSS BANK OF AFRICA LIMITED………………..PLAINTIFF

VERSUS

THE WHEREVER AFRICAN

DEVELOPMENT BANK…….……………………………….…1^ST DEFENDANT

PPPP KHAMIS……………………………….2^ND DEFENDANT

PPPP LIMITED……………………………………………..…3^RD DEFENDANT

THE ZIMBABWE BANK OF KENYA…………………………...4^TH DEFENDANT

AFFIDAVIT

I, PHILIP OLE PERRIO of Wabera Street, P.O Box  30437, Nairobi make oath and say:

1.                  I am the Manager Security Services of the Plaintiff herein and I am duly authorised to make this affidavit on behalf of the Plaintiff.

2.                  The Plaintiff has two bank accounts 106023506 and 105973519 in the names of the second and third Defendants respectively.

3.                  On 12^th April, 2000 the Plaintiff was served by the fourth Defendant with a copy of an order made in the Chief Magistrate’s Court at Nairobi in Criminal Case UWR 226 of 2000 restraining the Plaintiff from allowing any withdrawal or transfer of monies from the monies deposited in accounts 106023506 and 105973519.  A copy of the order is at pages 1 and 2 of the exhibit hereto.

4.                  On 17^th April, 2000 the Plaintiff was served by the fourth Defendant with a copy of an order made in the Chief Magistrate’s Court at Nairobi in Criminal Case UWR 232 of 2000 restraining the Plaintiff from allowing any withdrawal or transfer of monies from the monies deposited in accounts 106023506 and 105973519.  A copy of the order is at pages 3 and 4 of the exhibit hereto.

5.                  On 30^th May, 2000 the Plaintiff received a letter from the first Defendant dated the 26^th May, 2000 claiming control over the moneys in the accounts 106023506 and 105973519.  A copy of the letter is at page 5 of the exhibit hereto.

6.                  On 14^th July, 2000 the Plaintiff’s advocates Pppp Kababe & Pppps received from Pppp and Company, the advocates for the first Defendant, a copy of the order made by the High Court of Kenya at Nairobi, Milimani Loss courts in Civil Case pppp of 2000 restraining the second and third Defendants from dealing with the moneys in accounts 106023506 and 105973519.  A copy of the order is at page 6 and 7 of the exhibit hereto.

7.                  On 17^th July, 2000 the Plaintiff received a letter from the second Defendant claiming that the order in High Court Civil Case pppp of 2000 superceded the orders made by the Chief Magistrate and claiming access to the moneys in his account 106023506.  A copy of the letter  is at page 8 of the exhibit hereto.

8.                  The Plaintiff’s advocates replied on 21^st July, 2000. A copy of the letter is at jpage 9 of the exhibit hereto.

9.                  On 31^st July, 2000 the Plaintiff was served with a copy of the order made by the High Court of Kenya at Nairobi, Milimani Loss Court in Civil Case pppp of 2000 stating that the order of 5^th July 2000 restraining the second and third defendants from dealing with the moneys in accounts 106023506 and 105973519 had lapsed and was not renewed.  A copy of the order is at pages 10 and 11 of the exhibit hereto.

10.              Also on 31^st July 2000 the Plaintiff was served with an order made by the High Court of Kenya in Miscellaneous Criminal Application 339 of 2000 granting the second Defendant unlimited and free access to the moneys in account 106023506.  A copy of the order is at pages 12 and 13 of the exhibit hereto.

11.              On 1^st August 2000 the Plaintiff’s advocates Pppp Kababe & Pppps received a telephone call followed by a letter from Pppp and Company the advocates for the first Defendant stating that a further order had been made in HCCC No. pppp of 2000 restraining the second and third Defendants from dealing with the moneys in accounts 106023506 and 105973519.  A copy of the letter is at page 14 of the exhibit hereto.

12.              On 2^nd August 2000 the Plaintiff received a letter from the fourth Defendant claiming that the orders of the Chief Magistrate were still in force.  A copy of the letter is at pages 15 and 16 of the exhibit hereto.

13.              Also on 2^nd August 2000 the Plaintiff was served with a further order in HCCC No. pppp of 2000 again restraining the second and third Defendants from dealing with the moneys in accounts 106023506 and 105973519.  A copy of the order is at pages 17 and 18 of the exhibit hereto.

14.              On 3^rd August 2000 the Plaintiff received a letter from Pppp the advocates for second Defendant threatening contempt proceedings against the Plaintiff if the Plaintiff did not give the second Defendant free access to his account 106023506.  A copy of the letter is at pages 19 and 20 of the exhibit hereto.

15.              On 4^th August 2000 the Plaintiff’s advocates Pppp Kababe & Pppps wrote to Pppp advocates for the second Defendant with copies to Pppp & Company as advocates for the first Defendant and to the fourth Defendant requesting that the dispute be resolved failing which the Plaintiff would be forced to pay the moneys into Court in interpleader proceedings.  A copy of the letter is at pages 21 and 22 of the exhibit hereto.

16.              In spite of a reminder sent to Pppp, Pppp & Company and the fourth Defendant on 11^th August, 2000 there has been no response from any of them.  A copy of the letter is at page 23 of the exhibit hereto.

17.              I have read in the newspapers that the proceedings brought by the first Defendant in HCCC No. pppp of 2000 were dismissed on 18^th August, 2000 and I am concerned that once more the Plaintiff will be faced with conflicting claims to the moneys held by the Plaintiff from all four Defendants and conflicting orders of the Court as to what should be done with the moneys held by the Plaintiff.

18.              The Plaintiff is currently holding US$ 504,000.96 in account 106023506 in the name of the second Defendant and US$ 616.87 in account 105973519 in the name of the  third Defendant.

19.              The Plaintiff makes no claim to any of the moneys in accounts 106023506 and 105973519 save for its charges and the costs of these proceedings.

20.              There has been no collusion between the Plaintiff and any of the Defendants.

21.              The Plaintiff is willing to pay or transfer the moneys into Court of to dispose of the moneys as the Court may direct.

22.              I verily believe that this application is urgent as there have already been threats of contempt proceedings against the Plaintiff.

23.              I now produce the exhibit marked “POP 1”.

24.              Save where otherwise stated I make this affidavit from facts within my own knowledge and contained in the Plaintiff’s files.\

SWORN by the said PHILIP OLE PERIO              )

at Nairobi on this           day of                          2001            )

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BEFORE ME:                                                            )

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COMMISSIONER FOR OATHS:                           )

DRAWN BY;

JUNGU ATTORNEYS

P.O.Box 00000

DAR ES SALAAM TANZANIA.

TO BE SERVED UPON:

The Wherever African Development Bank;

Pppp Khamis;

Pppp Limited; and

The Zimbabwe Bank of Kenya

All of Nairobi.                                    (Service by the Plaintiff’s advocates)