JUDGMENT OF WAKI, JA
I have had the advantage of reading in draft the judgments of my brothers Makhandia and Prof. Odek, JJA. The appeal really turns on one issue raised and urged as ground 5 in the memorandum of appeal: whether the respondent was a legal entity which had the capacity to sue.
Divergent views have emerged on the issue, but I am persuaded by the view taken, and the reasoning made, by my Brother Prof. Odek, JA. The finding by the trial court that the appellants executed contracts of guarantee and indemnity with the respondent is not assailable. The indemnity and guarantee was up to a limit of Ksh.5 million. At the time, the respondent was in existence. When it subsequently rode into financial and management whirlwinds, it did not simply disappear. For such institutions, Parliament has provided a useful safety valve, not just for the investors, but more importantly to safeguard customers who had entrusted their funds with the collapsed institution. That is the Consolidated …