A German investor has sued a magistrate from the children’s court for issuing order allowing his estranged wife access to Sh3 million from his business account to purchase a house for his son.
Frank Michael Kraft in a petition filed before Lady Justice Mugure Thande wants a stay of the orders for release of the funds from his account at I&M bank pending the hearing and determination of the matter.
Kraft through his lawyer Daniel Ngonze is seeking a judicial review over the orders made by Senior Resident Magistrate L. Sindani on June 3.
Ngonze said that the said account is Kraft’s business account which trades in the name of M/S Xcellent Wildlife Paradise Holiday and Safaris.
“The import of that irregular order is that Kraft’s accounts have remained frozen to-date despite several appeals for review on grounds that they were business accounts and the monies held therein are not personal monies but clients’ funds,” said Ngonze.
Sindani had frozen over Sh7 million in his bank account after his wife obtained orders to freeze the accounts over alleged child support dispute.
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Early March 2020 the magistrate allowed Kraft to access Sh4 million to honor bookings made by his company leaving a balance of Sh3 million in the bank account.
Kraft’s estranged wife is seeking Sh282, 000 monthly stipends towards catering for their daughter’s school, health, food, clothing, house help and rent, utility and security.
However, in the high court application, Ngonze said that Sindani simply misapplied principles of humanity and commerce by issuing the wholly flop-sided orders foregoing without affording Kraft a fair hearing.
“The magistrate allowed the release of the funds to enable the ex-wife to purchase a residence for his son prior to the determination of the maintenance case before the children’s court,” said Kraft.
Ngonze said that the disputed order arose out of an interim application for maintenance that had been filed alongside a substantive suit seeking final orders for maintenance of the minor.
He said that the order allowing remittance of the monies to facilitate the acquisition of a permanent residence was a final substantive order granted in the interim before evidence could be adduced and tested through trial.
“The magistrate exceeded her mandate by making such an order with serious financial implications without any basis whatsoever before calling for parties to file affidavits of means as required by law,” said Ngonze.
Kraft wants the high court to quash all the orders made by the magistrate allowing for the transfer of Sh3 million from his business account to the estranged wife’s account.
The German also wants the high court to order reverse of the funds back into the account and a restraint order barring his wife and the bank from interfering with his bank account.
Sindani however has already recused herself from the matter after Kraft applied that she recuses herself from the matter.
Sindani directed that the monies held in Kraft’ garnishee bank business account be remitted to his ex-wife and minor for the purpose of acquiring a permanent residence for them should he leave the country for his home in Germany.
Ngonze said the magistrate had ordered that he remits Sh100,000 monthly towards the maintenance of the minor
“On June 3 2020 in Tononoka Children’ case number 510 of 2019, Sindani made a rather peculiar order allowing the minor’s mother to access the monies in the account to the exclusion of the Kraft,” said Ngonze.
The magistrate also ordered that Kraft continue paying fees for the minor at the prestigious school.
The counsel said that prior to March 6 2020 Sindani had issued a Garnishee Order Nisi ex-parte on December 3 2019 seizing Kraft’s personal and business accounts held at I&M bank in the absence of properly instituted garnishee proceedings.
He said there was no crystalised debt in the form of a duly perfected decree that could have been the subject of any garnishee proceedings.
Ngonze said that the magistrate did not call the bank for purposes of conducting a trial to ascertain the nature of the monies held in the account.
The magistrate made the orders after Kraft’s estranged wife said that she is jobless and as such, there is a high apprehension that if the orders are not granted, Kraft might move to withdraw monies to the detriment of her son and become unable to refund.
Ngonze said the court had in so doing also restricted Kraft’s freedom of movement, association, and access to his biological child.
The lawyer said that no prejudice would be occasioned to any party particularly the minor as the interim orders require the father to cater to her financial needs and school fees.
“It is in the best interest of the minor if the orders sought are granted as, in any event, it would be impossible for the applicant to comply with the other orders for interim maintenance when the only monies he has left are dealt with in the manner decreed by the said orders,” said Ngonze.
Kraft said that no formal charges have been presented against him nor has he been charged with and convicted for any criminal offense, neither has any judgment been entered against him or debt crystalized as against him and the purported restriction on his movement, association with his biological son as well as the transfer of his funds.