Court saves National Bank of Kenya from losing cash

Judge Joel Ngugi

The High Court in Nakuru has thwarted a decision that would have seen a local bank pay money to the man it had accused of stealing from it.

In a judgment made on October 8, Judge Joel Ngugi reversed an earlier decision by the Magistrate’s Court directing the National Bank of Kenya (NBK) to transfer part of the money to Richard Cheruyoit Koech who had earlier been charged with the offence of stealing cash from the lender

Prof Ngugi said the magistrate who was handling the case that had been brought against Koech and two others erred by asking the bank to pay the accused. This, he noted, amounted to converting a criminal trial into a civil one.

After exonerating Koech and two others of the offence of stealing, the lower court directed that Koech accesses Sh7 million, which was part of the money he had been accused of attempting to steal.

However, Justice Ngugi reversed the decision, noting that among other things, the allegedly stolen money was never an exhibit in the criminal trial and could not have been released.

“At most, the ‘exhibit,’ referred to by the parties would be documents evidencing the opening and existence of the account – not the monies which were never deposited or brought within the jurisdiction of the Criminal Court,” explained the judge.

He also noted that while the Criminal Court could order for a freeze or unfreezing of an account related to the subject of a criminal trial, it had no business ordering for the release of the contested funds in the alleged account.

“Such a contestation can only be a proper subject of a civil trial,” said the judge, explaining that in the present case, NBK insists there was never any funds in Koech’s bank account and that the account was never operational.

According to NBK, on October 27, 2017, they discovered that some Sh18.15 million that the Kenya Revenue Authority (KRA) had paid to Schindler, a Swiss manufacturer of elevators, was diverted to Koech’s account which had been dormant for lack of proper signatures.

Immediately NBK realised the money had been deflected into the wrong account, it reversed the transaction and charged Koech and two others at the Magistrate’s Court with the offence of stealing.

However, the prosecution lost the case as it was not able to prove that Koech or even his co-accused actually stole the money. After the win, Koech’s lawyer, Imbwaga Mukhogosi, made an oral application to the Magistrate’s Court to have the funds deposited to his account.

Mukhogosi told Magistrate B B Limo that upon receiving the money he was going to wire it back to Cheruiyot who was, allegedly, the ‘depositor’ of the amount. Mr Limo directed NBK to unfroze Koech’s account at NBK and allow him to access the funds in it to the tune of Sh7 million.

A shocked NBK then instructed its lawyers to explain to both the magistrate court and Mukhogosi why the order could not be executed as it never had funds belonging to Koech to be released to his lawyers.

Before moving to the High Court in Nakuru to contest the lower court’s decision, NBK’s lawyer, Kiburi explained to the Magistrate on December 13, 2019, why the bank could not comply with the order.

He also applied for the suspension of the orders. The magistrate suspended the decision pending further directions, but it was not clear if the ruling slated for January 21, 2020, had actually been heard, said Justice Ngugi as he reversed Limo’s decision.

“Koech, having survived the criminal trial, insists that he had the sums in the account, by uncanny serendipity, exactly equal to the allegedly stolen sum, and demands that they be refunded to him.”

The judge also told Koech that he had not proved or even attempted to prove when and how he deposited the sum he was claiming to the said account. “I only say this to clearly demonstrate that if Mr Koech is serious about demanding to be paid the sums, his route is a civil claim. He will not be able to achieve it through an oblique order in the criminal trial.”