The Kenya Pipeline Company's head office in Nairobi.
A Kenyan cargo handling company firm has been allowed to attach a bank account owned by the Kenya Pipeline Company (KPC) Limited to recover Sh425.6 million owed to it by a Lebanese company.
High Court judge Alfred Mabeya allowed Multiple ICD (Kenya) Limited to attach KPC’s bank account at Standard Chartered Bank to recover the money owed to it by Zakheem International Construction Company Limited.
The judge noted that correspondence filed in court showed that KPC owed about $31 million to Zakheem International and at least $25 million (about Sh3.2 billion) had been released by the Treasury for the payment of the debt.
In this regard, the Court finds the application to be meritorious. The decree order nisi is hereby made absolute and the application allowed,” said the judge.
Multiple ICD told the court that it sued Zakheem International over a debt of $3,286,590 (Sh425,613,405).
The parties later entered a consent as Zakhem International agreed that the debt would be settled from monies to be paid from a dispute between it (Zakhem International) and KPC.
Mr Manvir Singh Baryan of Zakhem International Construction Company was not keen on settling the amount.
He further claimed that the construction firm and KPC had conspired to defeat justice by refusing to release the funds.
Mr Baryan said Zakhem was a multinational company with no traceable assets, hence the application to attach the bank account in a bid to get its money.
The construction firm through an affidavit of Mr Ibrahim Zakhem opposed the case saying Multiple ICD had made three similar applications before, all of which have been dismissed as there was no evidence that KPC was holding any money on its behalf.
KPC also opposed the case saying it was not aware of the consent between Zakhem International and Multiple ICD.
Further, KPC said it did not hold any funds on behalf of Zakhem International Company.
The firm won the tender in 2014 to build a 20-inch 45-kilometre Naiorbi-Mombasa pipeline in a contract that was to be completed in 18 months at a cost of Sh48 billion.
A dispute arose and the contractor moved to court demanding payment for delays occasioned by KPC, among other disputed claims.
Justice Mabeya noted that in support of its case, Multiple ICD attached correspondences from the Treasury Principal Secretary that the budget for KPC was approved for payment of $25 million(Sh3.23 billion).
The judge said it was insufficient for KPC to merely state that it did not possess the funds in question.
“In order to discharge its burden of proof the garnishee is required to provide concrete evidence showing the absence of such funds. This is not merely a matter of denial but a factual assertion that needed to be substantiated,” said the judge.
Justice Mabeya said if KPC did not hold any funds belonging to Zakhem, it was its responsibility to produce evidence such as account statements, financial records, or other relevant documents, which demonstrate that the claimed sums are either not due or are not in its possession.
“That explanation lacking, the Court, is bereft with no alternative than to hold that the garnishee has failed to properly challenge the decree-holder’s assertions and as such, cannot be absolved from liability based solely on an unsupported denial,” the judge said.
