UNCERTAINTY

IRA operations at risk as advocate seeks Sh263m payout

Regulator appeals orders as it seeks to protect public funds.

In Summary

•The Court of Appeal has certified the matter as urgent and directed the authority to serve the advocate immediately and file its submissions by tomorrow (December 15).

•The advocate has up to December 20 to file his submissions.

The Insurance Regulatory Authority stand at a past conference in Nairobi/FILE
The Insurance Regulatory Authority stand at a past conference in Nairobi/FILE

The Insurance Regulatory Authority (IRA) has filed an appeal seeking to challenge orders to pay a city lawyer Sh263 million for legal services offered eight years ago.

This is under a certificate of urgency in what it argues is to protect public funds and save the regulator's operations from coming to a halt, if the payment is effected from its National Bank account.

The authority is seeking a stay of execution of the decision by the High  Court in Nairobi (High Court Misc. Application No. E207 of 2019 consolidated with High Court Misc. Application No. E1061 of 2020, Waweru Gatonye and Co. Advocates vs Insurance Regulatory Authority), delivered on August 13, 2021, pending hearing and determination of the appeal.

The Court of Appeal has since certified the matter as urgent and directed the authority to serve the advocate immediately and file its submissions by tomorrow (December 15).

The advocate has up to December 20 to file his submissions.

The move to take the matter to the Court of Appeal comes after a similar request was turned down by the High Court, a move that led to the advocate seeking and being granted an exparte Garnishee Order Nisi against the National Bank of Kenya.

It ordered that the authority’s monies deposited and being held at the bank be attached to answer the decree for the sum of Sh315,272,706.00 inclusive of interest as at November 25, 2021, pending the hearing and determination of the application.

In its application, the authority states that is unable to transact with the monies deposited and being held in deposit by the garnishee, the National Bank of Kenya following the directions issued exparte and that it stands to suffer great prejudice and loss of a colossal amount of public funds.

This is unless the application is heard urgently and an order for stay of execution is issued as the respondent may obtain Garnishee Order Absolute.

The authority further states that if the orders sought by the advocate are granted as requested, then its operational budget will be affected thereby grinding its services to a halt.

This would consequently affect its services and occasion grave injustice to the public.

It argues that it is in the interest of the substantive and public interest that the orders sought by the advocate are not granted and the application be dismissed in its entirety.

In an affidavit,Principle State Counsel and advocate of the High Court of Kenya, Kanini Nthiga states that there was “an urgent need to hear and determine the application failure to which the applicant will be compelled to make payment in excess of Sh315,272,706 (Sh315.3million) to the respondent from public funds and with no guarantee of refund in the event the appeal succeeds.”

On November 19, 2013, IRA instructed the firm to defend a suit by John Kipkemboi Kilel vs Insurance Regulatory Authority and two others (former CEO Sammy Makove and Hellen Olima).

A dispute however arose over the legal fees payable wherein the parties could not agree.

Subsequently, the firm filed an application for orders to cease from acting for the regulator, setting base for the current legal tussle.

IRA argues that the award of instruction fees of Sh151,053,122.82 was manifestly high and punitive in the circumstances and was an unjust enrichment of firm.

The final awarded money includes VAT and other costs attached to the case.

It wants orders sought to have its account at National Bank be used to pay the amounts, not granted and the application is dismissed in its entirety, in the interest of the public.

The Insurance Regulatory Authority of Kenya is the sole authority charged with the regulation and supervision of the insurance industry.

It ensures compliance by insurance and reinsurance companies, protects consumers and promotes a high degree of security for policyholders.