1. I have today delivered a separate Ruling in this same matter. The chronology of events relating to this suit and the current status thereof is captured in my said separate Ruling as follows:
“2. The background of this matter is that by the Plaint dated 26/01/2024, the Plaintiff sought Judgment for a permanent injunction to bar the 1 st and 2 nd Defendants in the main suit from, inter alia, disposing, or selling, transferring, or interfering with a number of the Plaintiffs’ motor vehicles said to have been proclaimed by the 1 st and 2 nd Defendants. It is not in dispute that the proclamation was a consequence of advancement of financial facilities to the Plaintiff by the 1 st Defendant for purposes of the Plaintiff carrying out several construction contracts awarded to it, but whose repayment the 1 st Defendant accuses the Plaintiff of defaulting on. It is also not in dispute that the 1 st Defendant, in response, through Messrs Wamae & Allen LLP, filed the Defence dated 23/02/2024, in which it introduced a Counterclaim whereof it sought Judgment for the alleged outstanding loan balance of Kshs 542,988,239 and USD 147,658 with interest, against the Plaintiff and 5 other individuals (including the 3 Applicants) whom the Defendant joined into the suit, and whom it described as Guarantors to the loan facilities.
3. I may also point out that on 26/06/2025, this Court (Mongare J) had allowed the Plaintiff’s Application for an interlocutory injunction to restrain the 1 st and 2 nd Defendants from, inter alia, disposing or, selling, transferring, or interfering with the Plaintiffs’ motor vehicles proclaimed as aforesaid. In allowing the Application, the Judge however directed the Plaintiff, as a condition for the injunction, to deposit into the loan account, within 120 days, proceeds of three construction contracts. The Defendant had also filed a rival Application which sought a raft of orders, including, issuance of warrant of arrests against the 2 nd – 5 th Defendants in the Counterclaim to show cause why they should not furnish security for the full debt and that they deposit their passports in Court, that the Plaintiff’s creditors be ordered to pay to the Defendant all monies due to the Plaintiff, that an injunction be issued restraining the Plaintiff and the 5 newly joined individuals from transferring company shares they own, and that Plaintiff’s creditors be ordered to file details of monies, paid and unpaid, in respect of the contracts. This rival Application by the Defendant was however dismissed vide the same Ruling, for failure to serve it upon the current Applicants, newly joined into the suit as Defendants in the Counterclaim.”
4. The Defendants then, taking a cue from the above Ruling, applied for, and obtained, on 22/10/2025, leave to serve the 2 nd - 5 th Defendants in the Counterclaim with the Summons to Enter Appearance. It is also evident that the Defendant then caused publication of the service notice to appear in the Daily Nation Newspaper of 3/11/2025. While the 3 rd Defendant duly entered Appearance through Messrs A.S. Kuloba & Wangila Advocates, the Applicants failed to do so. In the circumstances, the 1 st Defendant filed the Request for Judgment dated 18/12/2025 against the Applicants, which Judgment was duly entered on 9/12/2025.
2. As aforesaid, in allowing the Plaintiff’s Application for an injunction on 26/06/2025, Mongare J directed the Plaintiff, as a condition thereof, to deposit into the loan account, within 120 days, proceeds of 3 contracts. The 3 were the respective construction contracts awarded by the respective parties now joined in this Application as the Interested Parties listed above. It is also evident from the Plaint that the 3 contracts were in fact the reason the Plaintiff had applied for the loan in the first place, to serve as working capital for execution of the contracts. Quoted verbatim, the order was as follows:
“21. In conclusion I find merit in the Plaintiff’s application of 26 th January 2024 and I allow the same. I however direct that the Plaintiff do deposit the proceeds of the contracts from the its contract with ICM SPA, Kilifi Water and Sewerage Company limited, Kwale Water and Sewerage Company Ltd to its account with the 1 st Defendant to be applied to redeem the Loan facilities subject matter of these proceedings. The Plaintiff has 120 days to ensure that these payments are received by the Defendant from. Failing which the 1 st Defendant is at liberty to move the court appropriately.”
3. As a follow up to the Ruling, the 1 st Defendant (Plaintiff in the Counterclaim) has now, through its said Advocates, Messrs Wamae & Allen LLP , filed the Notice of Motion dated 18/02/2026 seeking additional orders. The prayers still pending under the Application are that:
“3. Kwale Water and Sewerage Company Ltd, ICM SPA and Kilifi Water and Sewerage Company Ltd be ordered to pay to Stanbic Bank Kenya Ltd pursuant to the order of the Court and the Notice of Assignments of all monies due to Sobetra Uganda Limited into the following account:
Account Name:
Sobetra Uganda Limited
Account Number:
0100006442662
Bank:
Stanbic Bank Kenya Ltd
Branch:
Upperhill
4. Kwale Water and Sewerage Company Ltd, ICM SPA and Kilifi Water and Sewerage Company Ltd be ordered within 7 days of the Court order to file under oath details of:
(a) All monies paid to the Sobetra Uganda Limited for each executed contract and details of the bank accounts the monies were paid to.
(b) The balance of all monies pending to be paid to Sobetra Uganda Limited and the due dates when the monies will be paid.
5. An order be issued against Sobetra Uganda Limited in the Counterclaim for production within 7 days of the order of the Court.
(a) An account and delivery of Kshs 542,988,239 and USD 147,658 due from ICM SPA Kilifi Water and Sewerage Company Ltd, Kwale Water and Sewerage Company Ltd and any other person remitting funds to the 1 st Defendant
(b) Delivery up of complete records and bank account details together with supporting documents of all payments received from contracts with ICM SPA, Kilifi Water and Sewerage Company Ltd and Kwale Water and Sewerage Company Ltd and the balance of outstanding payments.
(c) Complete bank statements relating to all bank accounts where funds were diverted to in respect of contract sums paid by ICM SPA, Kilifi Water and Sewerage Company Ltd and Kwale Water and Sewerage Company Ltd
(d) Evidence under oath of all monies paid by the 1 st Defendant to the 2 nd to 5 th Defendants whether in Kenya or outside Kenya
6. Any further relief that the Court deems fit in the interest of justice.
7. The costs of the application be ( sic ) the Plaintiff in the Counterclaim in any event.”
4. The Application is supported by the Affidavit sworn by Collins Sabatia , who introduced himself as the Defendant’s Manager-Business Support & Resolution Business and Commercial Clients. He deponed that the Plaintiff has not paid a single cent towards reduction of the debt since filing suit or the Court order, or furnished any information pertaining to payments expected from its creditors despite its Advocates’ promises to do so. He deponed further that the Defendant’s Advocates sent out respective letters dated 6/08/2025 to the Interested Parties about the issue, and the 1 st Interested Party’s Advocates, in response advised that its client could only remit the payments upon receipt of a Court order. He deponed that the Plaintiff has also not complied with Court orders made on 19/11/2025 directing it to furnish the list of all pending bills within 14 days, despite successive reminders
5. The Plaintiff, in response, through its Advocates, Messrs Mogeni & Co. , filed the Grounds of Opposition dated 5/03/2026 in which it was urged that the Application relates to persons who are not parties to these proceedings, and that the contracts the subject of the Application were between the Plaintiff and the Interested Parties and as per the principles of privity of contract, only the parties to a contract can enforce the terms of executed agreements. It was urged that as such, the orders sought are not only misplaced but also misguided as they seek to interfere and enforce the terms of a contract that the 1 st Defendant was not party to, and that allowing the Application would amount to engaging in the business of re-writing the terms of the subject contracts.
6. The 3 rd Interested Party, on its part, through its Advocates, Messrs John Bwire & Associates , filed the Grounds of Opposition dated 20/053/2026 in which it was basically urged that the 3 rd Interested Party’s contract is solely and exclusively with the Plaintiff, and as such, the contact cannot confer rights on third parties pursuant to the doctrine of privity of contract, which doctrine can only be upstaged by established exceptions, none of which exists in this case. It was thus urged that granting the orders would interfere with and vary the contractual rights and obligations existing between the parties to the contract, and that the orders sought are in the nature of garnishee orders yet no decree, judgment or garnishee proceedings exist.
7. The 1 st and 2 nd Interested did not participate in the Application, and neither did they file any response.
8. I then gave the parties leave to file written Submissions. However, by the time I concluded preparing this Ruling, I had only come across the Submissions dated 3/03/2026 filed by Messrs Wamae & Allen LLP , on behalf of, or for the Defendants-Applicants.
9. The Defendants’ Submissions basically consists of restatements of the matters already set out above. Save that Counsel added that the Plaintiff’s non-compliance with the orders made on 26/06/2025 is disobedience of a Court Order, and that Order 39 of the Civil Procedure Rules allows for attachment before Judgment. He also cited several authorities in support of the various limbs of his Submissions.
Determination
10. The issues that call for determination in this matter can be summarized as follows:
a) Whether to order the Interested Parties, being entities believed to be obligated to pay funds to the Plaintiff for execution of various construction contracts, to instead, pay such funds to the 1 st Defendant, a bank owed monies by the Plaintiff for loan facilities advanced, and to also furnish details of monies paid by them to the Plaintiff, including details of the Plaintiff’s bank account into which such funds were paid.
b) Whether to order the Plaintiff to give account and furnish details, information, particulars, and documents, including bank statements, pertaining to payments, made and still due, to the Plaintiff by the Interested Parties for the contracts .”
11. I notice that the prayers sought in the instant Application against, or affecting the Interested Parties, are basically similar to, if not the same as some of the orders that the 1 st Defendant had already sought by its earlier Application dated 23/02/2024, which Application was also a subject of the Ruling rendered by Mon’gare J on 26/06/2025. The Judge however did not determine those prayers upon finding that the Interested Parties had not been served, or invited to participate in canvassing the Application despite being affected by the same. The Interested Parties having now been brought in, nothing bars this Court from now determining those prayers on their merits.
12. Needless to state therefore, the Interested Parties are not parties to this suit but have been brought in by the Defendants in the main suit for purposes of canvassing the instant Application. Indeed, under civil practice, a non-party to a suit can be temporarily brought into ongoing Court proceedings for a specific collateral issue, or for enforcement of an order such as under Order 23 Rule 1 of the Civil Procedure Rules on attachment of debts ( garnishee ) and subsequently allowed to exit the suit upon determination of that specific matter. Under “ garnishee” proceedings for instance , a bank or a third-party debtor is served with an Order Nisi to show cause why it should not pay a Judgment-Debtor's money to the Decree-Holder. The bank, as such, participates strictly within that mandate and is discharged upon that issue being determined. Similarly, where an order issued by the Court can only be enforced or executed with the assistance of or action to be made by non-party, such non-party can be brought in temporarily for purposes only of ensuring such enforcement. Unlike standard joinder under Order 1, Rule 10 of th e Civil Procedure Rules , where a party is added to settle core questions in the main suit, execution and specialized third-party procedures only create a compartmentalized engagement. Once the discrete issue is resolved, that non-party has no further role in the main litigation and stands effectively discharged from the record.
13. Clearly, the above is the procedure that the Defendants, by bringing in the Interested Parties into the instant Application have invoked. The question is, “ has that procedure been properly invoked by the Defendants to justify the Court to compel the Interested Parties, entities not involved in this suit, to do the matters they are being asked to ?”
14. The Application is basically brought under Order 39 of the Civil Procedure Rules , which governs the law and procedures relating to “ arrest and attachment before judgment ” . The provision aims to secure the fruits of a lawsuit so a Defendant cannot defeat a potential decree by fleeing or hiding assets. The provision therefore outlines rules for security and property protection before a final Court decision. Order 39 Rule 6 empowers the Court to order for conditional attachment of a Defendant's specified property should the Defendant fail to show cause or fail to provide security.
15. It is apparent that the Application is brought to basically enforce the orders given by Mon’gare J by her Ruling rendered on 26/06/2025, in which, while allowing the Plaintiff’s Application for an injunction, she ordered the Plaintiff, as a condition thereof, to deposit into the loan account with the 1 st Defendant, within 120 days, proceeds of the 3 subject contracts. For ease of reference, I again quote the relevant portion of the order as follows:
“21. In conclusion I find merit in the Plaintiff’s application of 26 th January 2024 and I allow the same. I however direct that the Plaintiff do deposit the proceeds of the contracts from the its contract with ICM SPA, Kilifi Water and Sewerage Company limited, Kwale Water and Sewerage Company Ltd to its account with the 1 st Defendant to be applied to redeem the Loan facilities subject matter of these proceedings. The Plaintiff has 120 days to ensure that these payments are received by the Defendant from ( sic ). Failing which the 1 st Defendant is at liberty to move the court appropriately.”
16. The applicability of Order 39 in this case is however doubtful since it has been invoked, not to compel the third parties to assist in enforcing a Court order, but to compel them to effect actions that impact on, or affect their own private contracts executed with the Plaintiff, which contracts the 1 st Defendant is not party to. Granted, among the 3 Interested Parties, only the 3 rd Interested Party responded to the Application. However, the 3 rd Interested Party has, in opposing the Application, raised legitimate and weighty issues that this Court must interrogate before making a decision.
17. Upon carefully considering the matter, I am constrained to agree with the 3 rd Interested Party, that granting the orders sought at prayer 3 of the Application, seeking to compel the Interested Parties to remit monies to the 1 st Defendant, instead of the Plaintiff, may have the adverse effect of interfering with, and varying the contractual rights and obligations already existing between the Plaintiff and the Interested Parties. This is because the contracts involved are for implementation and carrying out of substantial infrastructure projects obviously involving huge sums of money specifically budgeted for that purpose, and obviously with strict timelines for completion of the works stipulated. In such projects, non-compliance with contractual timelines ordinarily attracts heavy penalties against the defaulting party. Such projects also ordinarily involve a number of allied service providers, and sub-contractors, all with their separate contracts. Asking the Interested parties to divert payment of monies meant for the projects to the 1 st Defendant, instead of the Plaintiff (the contractor) is likely to therefore starve the project of funds, and shall no doubt jeopardize the completion or proper carrying out of the works. This exposes, not only the Interested Parties, but also other innocent sub-contractors to the possibility of multiple claims for damages and lawsuits being brought against them for “sins” they know nothing about. While therefore the 1 st Defendant may very well gain, other “innocent” parties having nothing to do at all with the fight between the 1 st Defendant and the Plaintiff are likely to be unjustly placed into a situation suffering. Stalling of the projects as a result of diverting payment of funds meant for the projects, to the 1 st Defendant, is also likely to place the Interested Parties at loggerheads with taxpayers and residents for whose benefit the projects are being carried out.
18. Similarly, asking the Interested Parties to divulge and disclose information, particulars and details of payments that they have so far made to the 1 st Defendant under the contracts, payments yet to be made, and/or to divulge payment obligations under the respective contracts is asking this Court to stray into areas touching on opening up of confidential engagements involving entities not parties to this suit when basis thereof has not been properly laid. The Interested Parties, not being parties to this suit, and not involved in the core dispute in this suit, compelling them to divulge private contractual information is inviting this Court to lose focus of the real matters pending before it and, instead, veer into secondary issues having nothing to do with the core dispute before. I agree with the 3 rd Interested Party that its contract being solely and exclusively with the Plaintiff, under the doctrine of privity of contract, the same cannot confer upon the 1 st Defendant rights that the 1 st Interested Party be compelled to divulge information pertaining to the contracts. It must be recalled that what is before me are not proceedings brought under the provisions of Article 35 of the Constitution or the Access to Information Act , which set out the threshold for, and procedure of invoking and enforcing the right of access to information. Those provisions stipulate a totally separate procedure with its own unique requirements set out, and this Court is not sitting on the basis of those provisions. Prayer 4 of the Application therefore appears untenable to me.
19. If the Plaintiff has failed to comply with the orders issued on 26/06/2023, then the 1 st Defendant has the option of initiating contempt of Court proceedings.
20. I also agree with the 3 rd Interested Party that the orders sought are in the nature of garnishee relief under Order 23 Rule 1 of the Civil Procedure Rules yet no decree or judgment exists in this case, and the Interested Parties have not been brought it under any garnishee proceedings, nor has any been commenced.
21. Further, I am also unable to find in the online Judiciary Portal Case Tracking System (CTS ), any Return of Service confirming that the 1 st and 2 nd Interested Party were indeed served with the Application or Hearing Notices. Since the 3 rd Interested Party participated, it is very likely that all the Interested Parties were served but if so, there does not seem to be any Affidavit of Service to that effect in the CTS, perhaps inadvertently. Indeed, even the Application was itself initially not uploaded in the CTS.
22. As regards the prayers sought against the Plaintiff at prayer 5 of the Application, no grounds have been presented as to why the same should not be granted there being an accusation that the Plaintiff has, to date, not complied with the orders made on 26/06/2025 giving it 120 days to deposit in the loan account the proceeds of the contracts, which accusation the 1 st Defendant has not denied, or even responded to.
23. I however find prayer 5(a) seeking delivery by the Plaintiff of the sum of Kshs 542,988,239/- and USD 147,658, to be premature since granting it shall mean that this Court has already determined the Counterclaim in its entirety. Prayer 5(c) seeking that the 1 st Plaintiff be compelled to divulge the bank accounts details and identities of the persons to whom payments received under the contract have been paid to, or the purposes for which payments received under the contract have been utilized, apart from sounding like “a fishing expedition”, to also run the risk of violating the constitutional right to privacy of third parties not involved in this suit, which risk the Defendants (Applicants) have not addressed. There are clear laid out legal provisions regulating the process of divulging of information such as those sought as aforesaid, which provisions have not been invoked herein, or addressed or satisfied. These are also not execution proceedings seeking to trace assets for recovery, as no judgment has been given in this suit as yet. Only prayers 5(b) and 5(d) are therefore merited at this stage.
Final Orders
24. In the end, the Application by the 1 st Defendant in the main suit (Plaintiff in the Counterclaim) is only partially allowed in the following terms:
i) The Plaintiff in the main suit (1 st Defendant in the Counterclaim) - Sobetra Uganda Limited - is hereby ordered to, within twenty-one (21) days of service of this order , file in Court, and serve the other parties in this suit, complete records and bank account details, together with supporting documents, showing all payments received by it, or paid from each of the respective Interested Parties - ICM SPA, Kilifi Water and Sewerage Company Ltd , and Kwale Water and Sewerage Company Ltd – whether in Kenya or outside Kenya, arising from or in relation to the construction contracts the subject of the loans in issue in this suit, and the balance of outstanding payments due to be made under each of the respective contracts.
ii) The Plaintiff in the main suit (1 st Defendant in the Counterclaim - Sobetra Uganda Limited - shall bear the costs of the Application.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 H DAY OF AUGUST 2026
……………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Wabwire h/b Mr. A. Gichuhi, SC, for the Defendant in the main suit/Plaintiff in the Counterclaim
N/A for other parties
Court Assistant: Amos Boso
“2. The background of this matter is that by the Plaint dated 26/01/2024, the Plaintiff sought Judgment for a permanent injunction to bar the 1 st and 2 nd Defendants in the main suit from, inter alia, disposing, or selling, transferring, or interfering with a number of the Plaintiffs’ motor vehicles said to have been proclaimed by the 1 st and 2 nd Defendants. It is not in dispute that the proclamation was a consequence of advancement of financial facilities to the Plaintiff by the 1 st Defendant for purposes of the Plaintiff carrying out several construction contracts awarded to it, but whose repayment the 1 st Defendant accuses the Plaintiff of defaulting on. It is also not in dispute that the 1 st Defendant, in response, through Messrs Wamae & Allen LLP, filed the Defence dated 23/02/2024, in which it introduced a Counterclaim whereof it sought Judgment for the alleged outstanding loan balance of Kshs 542,988,239 and USD 147,658 with interest, against the Plaintiff and 5 other individuals (including the 3 Applicants) whom the Defendant joined into the suit, and whom it described as Guarantors to the loan facilities.
3. I may also point out that on 26/06/2025, this Court (Mongare J) had allowed the Plaintiff’s Application for an interlocutory injunction to restrain the 1 st and 2 nd Defendants from, inter alia, disposing or, selling, transferring, or interfering with the Plaintiffs’ motor vehicles proclaimed as aforesaid. In allowing the Application, the Judge however directed the Plaintiff, as a condition for the injunction, to deposit into the loan account, within 120 days, proceeds of three construction contracts. The Defendant had also filed a rival Application which sought a raft of orders, including, issuance of warrant of arrests against the 2 nd – 5 th Defendants in the Counterclaim to show cause why they should not furnish security for the full debt and that they deposit their passports in Court, that the Plaintiff’s creditors be ordered to pay to the Defendant all monies due to the Plaintiff, that an injunction be issued restraining the Plaintiff and the 5 newly joined individuals from transferring company shares they own, and that Plaintiff’s creditors be ordered to file details of monies, paid and unpaid, in respect of the contracts. This rival Application by the Defendant was however dismissed vide the same Ruling, for failure to serve it upon the current Applicants, newly joined into the suit as Defendants in the Counterclaim.”
4. The Defendants then, taking a cue from the above Ruling, applied for, and obtained, on 22/10/2025, leave to serve the 2 nd - 5 th Defendants in the Counterclaim with the Summons to Enter Appearance. It is also evident that the Defendant then caused publication of the service notice to appear in the Daily Nation Newspaper of 3/11/2025. While the 3 rd Defendant duly entered Appearance through Messrs A.S. Kuloba & Wangila Advocates, the Applicants failed to do so. In the circumstances, the 1 st Defendant filed the Request for Judgment dated 18/12/2025 against the Applicants, which Judgment was duly entered on 9/12/2025.
2. As aforesaid, in allowing the Plaintiff’s Application for an injunction on 26/06/2025, Mongare J directed the Plaintiff, as a condition thereof, to deposit into the loan account, within 120 days, proceeds of 3 contracts. The 3 were the respective construction contracts awarded by the respective parties now joined in this Application as the Interested Parties listed above. It is also evident from the Plaint that the 3 contracts were in fact the reason the Plaintiff had applied for the loan in the first place, to serve as working capital for execution of the contracts. Quoted verbatim, the order was as follows:
“21. In conclusion I find merit in the Plaintiff’s application of 26 th January 2024 and I allow the same. I however direct that the Plaintiff do deposit the proceeds of the contracts from the its contract with ICM SPA, Kilifi Water and Sewerage Company limited, Kwale Water and Sewerage Company Ltd to its account with the 1 st Defendant to be applied to redeem the Loan facilities subject matter of these proceedings. The Plaintiff has 120 days to ensure that these payments are received by the Defendant from. Failing which the 1 st Defendant is at liberty to move the court appropriately.”
3. As a follow up to the Ruling, the 1 st Defendant (Plaintiff in the Counterclaim) has now, through its said Advocates, Messrs Wamae & Allen LLP , filed the Notice of Motion dated 18/02/2026 seeking additional orders. The prayers still pending under the Application are that:
“3. Kwale Water and Sewerage Company Ltd, ICM SPA and Kilifi Water and Sewerage Company Ltd be ordered to pay to Stanbic Bank Kenya Ltd pursuant to the order of the Court and the Notice of Assignments of all monies due to Sobetra Uganda Limited into the following account:
Account Name:
Sobetra Uganda Limited
Account Number:
0100006442662
Bank:
Stanbic Bank Kenya Ltd
Branch:
Upperhill
4. Kwale Water and Sewerage Company Ltd, ICM SPA and Kilifi Water and Sewerage Company Ltd be ordered within 7 days of the Court order to file under oath details of:
(a) All monies paid to the Sobetra Uganda Limited for each executed contract and details of the bank accounts the monies were paid to.
(b) The balance of all monies pending to be paid to Sobetra Uganda Limited and the due dates when the monies will be paid.
5. An order be issued against Sobetra Uganda Limited in the Counterclaim for production within 7 days of the order of the Court.
(a) An account and delivery of Kshs 542,988,239 and USD 147,658 due from ICM SPA Kilifi Water and Sewerage Company Ltd, Kwale Water and Sewerage Company Ltd and any other person remitting funds to the 1 st Defendant
(b) Delivery up of complete records and bank account details together with supporting documents of all payments received from contracts with ICM SPA, Kilifi Water and Sewerage Company Ltd and Kwale Water and Sewerage Company Ltd and the balance of outstanding payments.
(c) Complete bank statements relating to all bank accounts where funds were diverted to in respect of contract sums paid by ICM SPA, Kilifi Water and Sewerage Company Ltd and Kwale Water and Sewerage Company Ltd
(d) Evidence under oath of all monies paid by the 1 st Defendant to the 2 nd to 5 th Defendants whether in Kenya or outside Kenya
6. Any further relief that the Court deems fit in the interest of justice.
7. The costs of the application be ( sic ) the Plaintiff in the Counterclaim in any event.”
4. The Application is supported by the Affidavit sworn by Collins Sabatia , who introduced himself as the Defendant’s Manager-Business Support & Resolution Business and Commercial Clients. He deponed that the Plaintiff has not paid a single cent towards reduction of the debt since filing suit or the Court order, or furnished any information pertaining to payments expected from its creditors despite its Advocates’ promises to do so. He deponed further that the Defendant’s Advocates sent out respective letters dated 6/08/2025 to the Interested Parties about the issue, and the 1 st Interested Party’s Advocates, in response advised that its client could only remit the payments upon receipt of a Court order. He deponed that the Plaintiff has also not complied with Court orders made on 19/11/2025 directing it to furnish the list of all pending bills within 14 days, despite successive reminders
5. The Plaintiff, in response, through its Advocates, Messrs Mogeni & Co. , filed the Grounds of Opposition dated 5/03/2026 in which it was urged that the Application relates to persons who are not parties to these proceedings, and that the contracts the subject of the Application were between the Plaintiff and the Interested Parties and as per the principles of privity of contract, only the parties to a contract can enforce the terms of executed agreements. It was urged that as such, the orders sought are not only misplaced but also misguided as they seek to interfere and enforce the terms of a contract that the 1 st Defendant was not party to, and that allowing the Application would amount to engaging in the business of re-writing the terms of the subject contracts.
6. The 3 rd Interested Party, on its part, through its Advocates, Messrs John Bwire & Associates , filed the Grounds of Opposition dated 20/053/2026 in which it was basically urged that the 3 rd Interested Party’s contract is solely and exclusively with the Plaintiff, and as such, the contact cannot confer rights on third parties pursuant to the doctrine of privity of contract, which doctrine can only be upstaged by established exceptions, none of which exists in this case. It was thus urged that granting the orders would interfere with and vary the contractual rights and obligations existing between the parties to the contract, and that the orders sought are in the nature of garnishee orders yet no decree, judgment or garnishee proceedings exist.
7. The 1 st and 2 nd Interested did not participate in the Application, and neither did they file any response.
8. I then gave the parties leave to file written Submissions. However, by the time I concluded preparing this Ruling, I had only come across the Submissions dated 3/03/2026 filed by Messrs Wamae & Allen LLP , on behalf of, or for the Defendants-Applicants.
9. The Defendants’ Submissions basically consists of restatements of the matters already set out above. Save that Counsel added that the Plaintiff’s non-compliance with the orders made on 26/06/2025 is disobedience of a Court Order, and that Order 39 of the Civil Procedure Rules allows for attachment before Judgment. He also cited several authorities in support of the various limbs of his Submissions.
Determination
10. The issues that call for determination in this matter can be summarized as follows:
a) Whether to order the Interested Parties, being entities believed to be obligated to pay funds to the Plaintiff for execution of various construction contracts, to instead, pay such funds to the 1 st Defendant, a bank owed monies by the Plaintiff for loan facilities advanced, and to also furnish details of monies paid by them to the Plaintiff, including details of the Plaintiff’s bank account into which such funds were paid.
b) Whether to order the Plaintiff to give account and furnish details, information, particulars, and documents, including bank statements, pertaining to payments, made and still due, to the Plaintiff by the Interested Parties for the contracts .”
11. I notice that the prayers sought in the instant Application against, or affecting the Interested Parties, are basically similar to, if not the same as some of the orders that the 1 st Defendant had already sought by its earlier Application dated 23/02/2024, which Application was also a subject of the Ruling rendered by Mon’gare J on 26/06/2025. The Judge however did not determine those prayers upon finding that the Interested Parties had not been served, or invited to participate in canvassing the Application despite being affected by the same. The Interested Parties having now been brought in, nothing bars this Court from now determining those prayers on their merits.
12. Needless to state therefore, the Interested Parties are not parties to this suit but have been brought in by the Defendants in the main suit for purposes of canvassing the instant Application. Indeed, under civil practice, a non-party to a suit can be temporarily brought into ongoing Court proceedings for a specific collateral issue, or for enforcement of an order such as under Order 23 Rule 1 of the Civil Procedure Rules on attachment of debts ( garnishee ) and subsequently allowed to exit the suit upon determination of that specific matter. Under “ garnishee” proceedings for instance , a bank or a third-party debtor is served with an Order Nisi to show cause why it should not pay a Judgment-Debtor's money to the Decree-Holder. The bank, as such, participates strictly within that mandate and is discharged upon that issue being determined. Similarly, where an order issued by the Court can only be enforced or executed with the assistance of or action to be made by non-party, such non-party can be brought in temporarily for purposes only of ensuring such enforcement. Unlike standard joinder under Order 1, Rule 10 of th e Civil Procedure Rules , where a party is added to settle core questions in the main suit, execution and specialized third-party procedures only create a compartmentalized engagement. Once the discrete issue is resolved, that non-party has no further role in the main litigation and stands effectively discharged from the record.
13. Clearly, the above is the procedure that the Defendants, by bringing in the Interested Parties into the instant Application have invoked. The question is, “ has that procedure been properly invoked by the Defendants to justify the Court to compel the Interested Parties, entities not involved in this suit, to do the matters they are being asked to ?”
14. The Application is basically brought under Order 39 of the Civil Procedure Rules , which governs the law and procedures relating to “ arrest and attachment before judgment ” . The provision aims to secure the fruits of a lawsuit so a Defendant cannot defeat a potential decree by fleeing or hiding assets. The provision therefore outlines rules for security and property protection before a final Court decision. Order 39 Rule 6 empowers the Court to order for conditional attachment of a Defendant's specified property should the Defendant fail to show cause or fail to provide security.
15. It is apparent that the Application is brought to basically enforce the orders given by Mon’gare J by her Ruling rendered on 26/06/2025, in which, while allowing the Plaintiff’s Application for an injunction, she ordered the Plaintiff, as a condition thereof, to deposit into the loan account with the 1 st Defendant, within 120 days, proceeds of the 3 subject contracts. For ease of reference, I again quote the relevant portion of the order as follows:
“21. In conclusion I find merit in the Plaintiff’s application of 26 th January 2024 and I allow the same. I however direct that the Plaintiff do deposit the proceeds of the contracts from the its contract with ICM SPA, Kilifi Water and Sewerage Company limited, Kwale Water and Sewerage Company Ltd to its account with the 1 st Defendant to be applied to redeem the Loan facilities subject matter of these proceedings. The Plaintiff has 120 days to ensure that these payments are received by the Defendant from ( sic ). Failing which the 1 st Defendant is at liberty to move the court appropriately.”
16. The applicability of Order 39 in this case is however doubtful since it has been invoked, not to compel the third parties to assist in enforcing a Court order, but to compel them to effect actions that impact on, or affect their own private contracts executed with the Plaintiff, which contracts the 1 st Defendant is not party to. Granted, among the 3 Interested Parties, only the 3 rd Interested Party responded to the Application. However, the 3 rd Interested Party has, in opposing the Application, raised legitimate and weighty issues that this Court must interrogate before making a decision.
17. Upon carefully considering the matter, I am constrained to agree with the 3 rd Interested Party, that granting the orders sought at prayer 3 of the Application, seeking to compel the Interested Parties to remit monies to the 1 st Defendant, instead of the Plaintiff, may have the adverse effect of interfering with, and varying the contractual rights and obligations already existing between the Plaintiff and the Interested Parties. This is because the contracts involved are for implementation and carrying out of substantial infrastructure projects obviously involving huge sums of money specifically budgeted for that purpose, and obviously with strict timelines for completion of the works stipulated. In such projects, non-compliance with contractual timelines ordinarily attracts heavy penalties against the defaulting party. Such projects also ordinarily involve a number of allied service providers, and sub-contractors, all with their separate contracts. Asking the Interested parties to divert payment of monies meant for the projects to the 1 st Defendant, instead of the Plaintiff (the contractor) is likely to therefore starve the project of funds, and shall no doubt jeopardize the completion or proper carrying out of the works. This exposes, not only the Interested Parties, but also other innocent sub-contractors to the possibility of multiple claims for damages and lawsuits being brought against them for “sins” they know nothing about. While therefore the 1 st Defendant may very well gain, other “innocent” parties having nothing to do at all with the fight between the 1 st Defendant and the Plaintiff are likely to be unjustly placed into a situation suffering. Stalling of the projects as a result of diverting payment of funds meant for the projects, to the 1 st Defendant, is also likely to place the Interested Parties at loggerheads with taxpayers and residents for whose benefit the projects are being carried out.
18. Similarly, asking the Interested Parties to divulge and disclose information, particulars and details of payments that they have so far made to the 1 st Defendant under the contracts, payments yet to be made, and/or to divulge payment obligations under the respective contracts is asking this Court to stray into areas touching on opening up of confidential engagements involving entities not parties to this suit when basis thereof has not been properly laid. The Interested Parties, not being parties to this suit, and not involved in the core dispute in this suit, compelling them to divulge private contractual information is inviting this Court to lose focus of the real matters pending before it and, instead, veer into secondary issues having nothing to do with the core dispute before. I agree with the 3 rd Interested Party that its contract being solely and exclusively with the Plaintiff, under the doctrine of privity of contract, the same cannot confer upon the 1 st Defendant rights that the 1 st Interested Party be compelled to divulge information pertaining to the contracts. It must be recalled that what is before me are not proceedings brought under the provisions of Article 35 of the Constitution or the Access to Information Act , which set out the threshold for, and procedure of invoking and enforcing the right of access to information. Those provisions stipulate a totally separate procedure with its own unique requirements set out, and this Court is not sitting on the basis of those provisions. Prayer 4 of the Application therefore appears untenable to me.
19. If the Plaintiff has failed to comply with the orders issued on 26/06/2023, then the 1 st Defendant has the option of initiating contempt of Court proceedings.
20. I also agree with the 3 rd Interested Party that the orders sought are in the nature of garnishee relief under Order 23 Rule 1 of the Civil Procedure Rules yet no decree or judgment exists in this case, and the Interested Parties have not been brought it under any garnishee proceedings, nor has any been commenced.
21. Further, I am also unable to find in the online Judiciary Portal Case Tracking System (CTS ), any Return of Service confirming that the 1 st and 2 nd Interested Party were indeed served with the Application or Hearing Notices. Since the 3 rd Interested Party participated, it is very likely that all the Interested Parties were served but if so, there does not seem to be any Affidavit of Service to that effect in the CTS, perhaps inadvertently. Indeed, even the Application was itself initially not uploaded in the CTS.
22. As regards the prayers sought against the Plaintiff at prayer 5 of the Application, no grounds have been presented as to why the same should not be granted there being an accusation that the Plaintiff has, to date, not complied with the orders made on 26/06/2025 giving it 120 days to deposit in the loan account the proceeds of the contracts, which accusation the 1 st Defendant has not denied, or even responded to.
23. I however find prayer 5(a) seeking delivery by the Plaintiff of the sum of Kshs 542,988,239/- and USD 147,658, to be premature since granting it shall mean that this Court has already determined the Counterclaim in its entirety. Prayer 5(c) seeking that the 1 st Plaintiff be compelled to divulge the bank accounts details and identities of the persons to whom payments received under the contract have been paid to, or the purposes for which payments received under the contract have been utilized, apart from sounding like “a fishing expedition”, to also run the risk of violating the constitutional right to privacy of third parties not involved in this suit, which risk the Defendants (Applicants) have not addressed. There are clear laid out legal provisions regulating the process of divulging of information such as those sought as aforesaid, which provisions have not been invoked herein, or addressed or satisfied. These are also not execution proceedings seeking to trace assets for recovery, as no judgment has been given in this suit as yet. Only prayers 5(b) and 5(d) are therefore merited at this stage.
Final Orders
24. In the end, the Application by the 1 st Defendant in the main suit (Plaintiff in the Counterclaim) is only partially allowed in the following terms:
i) The Plaintiff in the main suit (1 st Defendant in the Counterclaim) - Sobetra Uganda Limited - is hereby ordered to, within twenty-one (21) days of service of this order , file in Court, and serve the other parties in this suit, complete records and bank account details, together with supporting documents, showing all payments received by it, or paid from each of the respective Interested Parties - ICM SPA, Kilifi Water and Sewerage Company Ltd , and Kwale Water and Sewerage Company Ltd – whether in Kenya or outside Kenya, arising from or in relation to the construction contracts the subject of the loans in issue in this suit, and the balance of outstanding payments due to be made under each of the respective contracts.
ii) The Plaintiff in the main suit (1 st Defendant in the Counterclaim - Sobetra Uganda Limited - shall bear the costs of the Application.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14 H DAY OF AUGUST 2026
……………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Wabwire h/b Mr. A. Gichuhi, SC, for the Defendant in the main suit/Plaintiff in the Counterclaim
N/A for other parties
Court Assistant: Amos Boso