Certificate of Urgency 4

1. REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
MULTI-TRACK
HCCC. OF 2015
IMPERIAL BANK LIMITED …………………...….………………………….…PLAINTIFF
(UNDER THE STATUTORY RECEIVERSHIP OF THE
RECEIVER MANAGER)
VERSUS
W.E. TILLEY (MUTHAIGA) LIMITED...…………....…………………..1ST DEFENDANT
PRIMECATCH (EXPORTS) LIMITED….……………………...………2ND DEFENDANT
MARA FISH PACKERS LIMITED...……………………………………3RD DEFENDANT
J FISH KENYA LIMITED...…………..…………………………………..4TH DEFENDANT
VICTORIAN DELIGHT LIMITED………………………………………5TH DEFENDANT
RUBY RED LIMITED …..…………………..…………………………….6TH DEFENDANT
VALUE PAK FOODS LIMITED ……..………..………………………....7TH DEFENDANT
FROM EDEN LIMITED ..…….…………………………………………...8TH DEFENDANT
AQUALITE LIMITED …..………………………..……………………….9TH DEFENDANT
ZULFIKAR HAIDERALI JESSA ……..………….……………………..10TH DEFENDANT
NASIR HAIDERALI JESSA…..……………………………………........11TH DEFENDANT
NARGIS JESSA ..…………………………………………………………12TH DEFENDANT
NADIR AZIZALI JESSA ……..………………………………………….13TH DEFENDANT
FIROZ JESSA…..……..…………………………………………………..14TH DEFENDANT
SALIM JESSA..……………………………………………………………15TH DEFENDANT
IRFAN SHAMSHADIN JESSA…………………………………………..16TH DEFENDANT
NASHIV HAIDERALI JESSA………………………..………………….17TH DEFENDANT
MARMO E GRANITO MINES (T) LIMITED…..……………………..18TH DEFENDANT
MARMO MARBLE (U) LIMITED..…………………………………….19TH DEFENDANT
FISHWAYS UGANDA LIMITED ……………………………………...20TH DEFENDANT
CERTIFICATE OF URGENCY
I GEORGE ORARO SC an Advocate and a partner in the law firm of Messrs. Oraro&
Company Advocates hereby certify that the enclosed application ought to be certified urgent for
the following reasons:
1. THAT the Defendants/Respondents herein have in collusion with the Deceased Group
Managing Director of the Plaintiff and other Senior Officers of the Plaintiff Bank have
falsely, fraudulently, unlawfully and illegally defrauded and/or siphoned an amount in
excess of Kshs. 34 billion from the Plaintiff.
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2. 2. THAT there is a risk that unless the enclosed application is heard and determined as a
matter of urgency and the orders sought issued ex parte in the first instance:
a. The Defendant/Respondents will transfer and dissipate their assets from Kenya
and the jurisdiction of this Court;
b. The Defendant/Respondents assets will be transferred and/or disposed of in a bid
to defeat and/or render otiose any orders that this Honorable Court will give upon
hearing this suit on its merits.
c. The Bond Holders whose monies were taken as recently as August 2015 and the
depositors’ holdings amounting to about Kshs.87 billion will lose all their money
for a long time to come unless the same can be traced forthwith.
d. The loss cannot be compensated in damages which in the event the Bank will not
be able to pay if it goes into liquidation.
3. THAT the Defendant/Respondents will make attempts to transfer their assets and/ create
a cover up of their fraudulent activities thereby defeating the ends of justice.
4. THAT the 1st
Defendant has admitted receiving Kshs. 10,000,000,000 (Kenya Shillings
ten billion) from the Plaintiff and has offered to have a Second Charge created over its
properties.
DATED at NAIROBI this day of 2015
ORARO & COMPANY
ADVOCATES FOR THE PLAINTIFF/APPLICANT
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3. Drawn & Filed By
Oraro & Company
Advocates
ACK Garden House Annnex, 6th
Floor
P.O. Box 51236-00200
Nairobi
To Be Served Upon
1. W.E. Tilley (Muthaiga) Limited
2. Primecatch (Exports) Limited
3. Mara Fish Packers Limited
4. J Fish Kenya Limited
5. Victorian Delight Limited
6. Ruby Red Limited
7. Value Pak Foods Limited
8. From Eden Limited
9. Aqualite Limited
10. Zulfikar Haiderali Jessa
11. Nasir Haiderali Jessa
12. Nargis Jessa
13. Nadir Azizali Jessa
14. Firoz Jessa
15. Salim Jessa
16. Irfan Shamshadin Jessa
17. Nashiv Haiderali Jessa
18. Marmo E Granito Mines (T) Limited
19. Marmo Marble (U) Limited
20. Fishways Uganda Limited
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4. REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
MULTI-TRACK
HCCC. OF 2015
IMPERIAL BANK LIMITED ………………...….………………………….…PLAINTIFF
(UNDER THE STATUTORY RECEIVERSHIP OF THE
RECEIVER MANAGER)
VERSUS
W.E. TILLEY (MUTHAIGA) LIMITED...…………....…………………..1ST DEFENDANT
PRIMECATCH (EXPORTS) LIMITED….……………………...………2ND DEFENDANT
MARA FISH PACKERS LIMITED...……………………………………3RD DEFENDANT
J FISH KENYA LIMITED...…………..…………………………………..4TH DEFENDANT
VICTORIAN DELIGHT LIMITED………………………………………5TH DEFENDANT
RUBY RED LIMITED …..…………………..…………………………….6TH DEFENDANT
VALUE PAK FOODS LIMITED ……..………..………………………....7TH DEFENDANT
FROM EDEN LIMITED ..…….…………………………………………...8TH DEFENDANT
AQUALITE LIMITED …..………………………..……………………….9TH DEFENDANT
ZULFIKAR HAIDERALI JESSA ……..………….……………………..10TH DEFENDANT
NASIR HAIDERALI JESSA…..……………………………………........11TH DEFENDANT
NARGIS JESSA ..…………………………………………………………12TH DEFENDANT
NADIR AZIZALI JESSA ……..………………………………………….13TH DEFENDANT
FIROZ JESSA…..……..…………………………………………………..14TH DEFENDANT
SALIM JESSA..……………………………………………………………15TH DEFENDANT
IRFAN SHAMSHADIN JESSA…………………………………………..16TH DEFENDANT
NASHIV HAIDERALI JESSA………………………..………………….17TH DEFENDANT
MARMO E GRANITO MINES (T) LIMITED…..……………………..18TH DEFENDANT
MARMO MARBLE (U) LIMITED..…………………………………….19TH DEFENDANT
FISHWAYS UGANDA LIMITED ……………………………………...20TH DEFENDANT
NOTICE OF MOTION
(Sections 1A,1B, 3. 3A 63 of The Civil Procedure Act, Orders 40 Rules 1 and 3 Of The Civil
Procedure Rules, Article 159 of the Constitution of Kenya)
TAKE NOTICE that on _____________the _______day of October 2015 at ____o’clock in the
forenoon or soon thereafter the Plaintiff/ Applicant’s Counsel will move the Court for the
following orders:
1. THAT the Honorable Court do certify this application as urgent and hear this application
ex parte in the first instance.
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5. 2. THAT pending the hearing and determination of this application inter partes this
Honorable Court do issue an injunction barring the Defendant/Respondents, their
servants and/or agents or otherwise howsoever from removing from this jurisdiction,
disposing of,mortgaging(and/or further mortgaging), charging(and/or further
charging),assigning, diminishing, transferring,disposing, alienating, operating and/or
otherwise interfering and/or dealing with any of their assets within this jurisdiction,
which said assets include but are not limited to:
Schedule of Known Assets
a. All Bank Accounts in the names of the Defendants in Kenya.
b. The Following Real Estate and/or Land Holdings and the Developments thereon:
i. L.R. No. 214/796 Nairobi (which is Charged to Fidelity Commercial Bank);
ii. L.R. No. 214/797 Nairobi(which is Charged to Fidelity Commercial Bank);
iii. L.R. No. 18995/3 Nairobi (which is currently charged to Diamond Trust
Bank);
iv. L.R. No.13560/3 (which is currently charged to Diamond Trust Bank);
v. L.R. No. 9042/809 Nairobi(which is currently charged to Diamond Trust
Bank);
vi. L.R. No. Ruiru Township 517 and 518 (which are currently charged to Prime
Bank);and
vii. L.R. Numbers 15081/32 and 15081/33 (which are currently charged to Prime
Bank).
3. THAT pending the hearing and determination of this application the Court do issue an
order compelling the Defendant/Respondents to furnish a complete set and/or list of all
their assets as well as their Bank Accounts.
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6. 4. THAT pending the hearing and determination of this suit the Defendant/Respondents be
directed to furnish their Bank Account Statements and Audited Accounts for the period
2006 and 2015.
5. THAT pending the hearing and determination of this suit this Honorable Court do issue
an injunction barring the Defendant/Respondents, their servants and/or agents or
otherwise howsoever from removing from this jurisdiction, disposing of,
mortgaging(and/or further mortgaging), charging(and/or further charging),assigning,
diminishing,transferring, disposing, alienating, operating and/or otherwise interfering
and/or dealing with any of their assets within this jurisdiction, which said assets include
but are not limited to:
a. All their Bank Accounts in any Bank in Kenya:
b. The Following Real Estate and/or Land Holdings and the Developments thereon:
i. L.R. No. 214/796 Nairobi (which is Charged to Fidelity Commercial
Bank);
ii. L.R. No. 214/797 Nairobi (which is Charged to Fidelity Commercial
Bank);
iii. L.R. No. 18995/3 Nairobi (which is currently charged to Diamond Trust
Bank);
iv. L.R. No.13560/3 (which is currently charged to Diamond Trust Bank);
v. L.R. No. 9042/809 Nairobi (which is currently charged to Diamond Trust
Bank);
vi. L.R. No. Ruiru Township 517 and 518 (which are currently charged to
Prime Bank);and
vii. L.R. Numbers 15081/32 and 15081/33 (which are currently charged to
Prime Bank).
6. THAT this Honorable Court do direct that this order be served in a prominent manner by
way of an Advertisement in two local daily newspapers of nationwide circulation.
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7. 7. THAT this Honorable Court be pleased to issue any such other orders as it deems just
and expedient.
8. THAT the costs of this application be provided for.
WHICH SAID APPLICATION is based on the following grounds:
1. THAT the Plaintiff herein (hereinafter referred to as the Bank) is a bank duly licensed by
the Banking Act (Cap.488) of the Laws of Kenya.
2. THAT the Bank obtains deposits from customers in whose names accounts are opened
and operated.
3. THAT from the year 2006 up to 15th
September 2015 Mr. Abdulmalek Janmohamed
(hereinafter referred to as the Deceased) was the Bank’s Group Managing Director.
4. THAT on 15th
September 2015 Mr. Abdulmalek Janmohamed the Bank’s Group
Managing Director passed away after a cardiac arrest.
5. THAT shortly after the passing away of the Deceased, Mr. Naeem Shah(formerly the
Bank’s Head of Credit and now currently the Bank’s Acting Managing Director) and Mr.
Kaburu ( former Chief Finance Officer and current Deputy Managing Director) revealed
to the Bank’s Directors that the Deceased had been responsible for activities and/or
actions that were irregular, to wit: the Deceased had for sometime instructed them to
carry out certain false, fraudulent, unlawful and illegal activities in the Bank. They
claimed that:
a. they had been instructed by the Deceased to permit the Defendants among other
customers of the Bank to withdraw vast sums of money from their accounts
without having any loan facilities or accommodation;
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8. b. they had received instructions on handwritten chits to carry out the acts set out in
(a) above:
c. they had been instructed to manipulate the Bank’s books so as to allow the false,
fraudulent and unlawful acts set out in(a) above so as to hide the fraudulent acts
of the Deceased who had in concert with the Defendants and other customers
defrauded colossal sums from the Bank amounting to billions of shillings; and
d. they had been instructed to ensure that the said amounts should not be reflected in
the Bank’s accounts and instead they should be suppressed by being contained in
accounts which would not be exposed in the Bank’s Financial Statements.
e. The Defendants/Respondents had not been expected to repay the said sums.
6. THAT unbeknown to the Bank, during the period 2002 to September 2015 the Deceased
was exerting his influence to siphon and direct that vast sums of money in excess of
Kshs. 34 billion be transferred to the Defendant/Respondents in a fraudulent scheme.
7. THAT with respect to the transfer to and receipt by the Defendants of an amount in
excess of Kshs. 34 billion the Defendant/Respondents herein neither furnished any
consideration, securities and/or guarantees to the Bank as would be the norm.
8. THAT the Defendant/Respondents herein received the aforementioned sums from the
Bank either in cash and/or through other accounts in a bid to hide these fraudulent, illegal
and unlawful transactions from the Bank.
9. THAT the fraudulent withdrawals by the Defendants were hidden from the Bank’s
Reporting System through a software manipulation.
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9. 10. THAT the Defendants were allowed to operate transaction accounts that allowed them to
access funds which said funds:
a. Were either withdrawn from the Bank;
b. Were transferred to another account and the transaction account closed after all
funds had been withdrawn;
c. Which said funds were fraudulently obtained from the Bank with no intention of
ever repaying them with the full knowledge that the said sums were not in the
Bank’s system.
11. THAT the Defendant/Respondents herein have clearly been unjustly enriched and/or
benefitted from the illegal transfers of these vast sums to them on the order of the
Deceased and other Senior Officers of the Bank.
12. THAT on 13th
October, 2015, the Central Bank of Kenya (CBK) appointed the Kenya
Deposit Insurance Corporation (“the Receiver”) as the Receiver of the Bank for a period
of twelve months pursuant to section 43(1) and (2) and section 53(1) of the Kenya
Deposit Insurance Act (KDI Act). Mr. Peter K. Gatere was appointed as the Bank’s
Receiver Manager and his mandate pursuant to Section 44 (2) (b) of the KDI Act
includes but is not limited to assuming control of the whole of the assets, liabilities and
business affairs of the Bank and carrying on the whole of the business of the Bank and
managing its assets, liabilities and affairs.
13. THAT the Receiver has so far undertaken a detailed preliminary inquiry into the affairs
of the Bank and he has established that the Defendants herein engaged in a fraudulent,
illegal and unlawful scheme which has resulted in the Bank losing and/or being
defrauded of an amount in excess of Kshs. 34 billion.
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10. 14. THAT the Receiver has instituted this case in accordance with the law in the name of the
Bank as against the Defendant/Respondents so as to:
a. Seek to protect the innocent depositors who have deposited their money in the
Bank; and
b. Recover the sums falsely, fraudulently, unlawfully and illegally transferred to the
Defendant/Respondents by and/or on the instructions of the Deceased and other
Senior Officers of the Bank.
15. THAT the Bank is apprehensive that the Defendant/Respondents herein will transfer
their assets from the jurisdiction of this Honorable Court unless they are restrained and/or
barred from: removing from this jurisdiction, disposing of, mortgaging (and/or further
mortgaging), charging (and/or further charging), assigning, diminishing, transferring,
disposing, alienating, operating and/or otherwise interfering and/or dealing with any of
their assets within this jurisdiction.
16. THAT the Bank owes a duty to its customers and/or depositors which said overriding
duty will be defeated if the monies illegally transferred and/or withdrawn by the
Defendant/Respondents cannot be recovered with the aid of the Court.
WHICH SAID APPLICATION IS FURTHER SUPPORTED by the duly sworn Affidavit of
MR. PETER K. GATERE as well as further grounds to be adduced at the hearing hereof.
DATED at NAIROBI this day of 2015
ORARO & COMPANY
ADVOCATES FOR THE PLAINTIFF/APPLICANT
Drawn & Filed By
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11. Oraro & Company
Advocates
ACK Garden House Annnex, 6th Floor
1st
Ngong Avenue,
P.O. Box 51236-00200
Nairobi
To Be Served Upon
1. W.E. Tilley (Muthaiga) Limited
2. Primecatch (Exports) Limited
3. Mara Fish Packers Limited
4. J Fish Kenya Limited
5. Victorian Delight Limited
6. Ruby Red Limited
7. Value Pak Foods Limited
8. From Eden Limited
9. Aqualite Limited
10. Zulfikar Haiderali Jessa
11. Nasir Haiderali Jessa
12. Nargis Jessa
13. Nadir Azizali Jessa
14. Firoz Jessa
15. Salim Jessa
16. Irfan Shamshadin Jessa
17. Nashiv Haiderali Jessa
18. Marmo E Granito Mines (T) Limited
19. Marmo Marble (U) Limited
20. Fishways Uganda Limited
11

12. N/B: If any party served with this application fails to appear at the time and place mentioned
hereinabove, the Court will proceed to make such orders and give such directions as it
deems just and expedient.
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