Money Markets
By BRIAN WASUNA
In Summary
- The legal tussle was triggered by the exit of four BAAM executives to form a new advisory company, Cytonn.
- Within weeks of formation, Cytonn were the lead transaction advisors for projects worth about Sh40 billion.
Investment firm British-American Investments Company
(Britam), private equity fund Cytonn and real estate developer Acorn
served up what was arguably 2014’s biggest corporate legal battle.
The tussle, which has attracted a
multiplicity of lawsuits, was triggered by the mass exit of four British
American Asset Management (BAAM) executives to form their own advisory
company, Cytonn.
But Britam moved to court soon
after seeking to recover some Sh3.9 billion it claims the former BAAM
managers illegally transferred to the accounts of companies affiliated
to Acorn – a real estate developer in which Britam has a stake.
Among the prayers Britam sought
was the blockage of bank accounts belonging to four special purpose
vehicles that Acorn had formed to develop various real estate projects.
The Sh3.9 billion that Edwin
Dande (former chief executive), Shiv Arora (investment analyst),
Patricia Wanjama (head of legal) and Elizabeth Nkukuu (portfolio
manager) allegedly shipped out before leaving Britam were moved to the
four accounts.
The four former Britam employees
formed Cytonn shortly after leaving Britam, and bagged several projects
they had initiated while still working for Britam’s asset management
subsidiary.
Within just weeks of its
formation, Cytonn had been appointed the lead transaction advisors for a
series of projects estimated to be worth Sh40 billion – including a
large proportion from Acorn. Britam would not take it lying down.
The investment firm, through law
Fred Ngatia launched one of corporate Kenya’s biggest legal battles that
has since been widely described as an ‘old money versus new money’ war
owing to the age difference between Britam’s owners and the Cytonn
managers.
“The four former Britam
executives irregularly and without authority transferred the cumulative
sum of Sh3.9 billion being money belonging to the British American Asset
Managers (BAAM), to bank accounts operated by the 8th to 12th
respondents,” Britam said in a sworn affidavit.
In a replying affidavit filed in
court mid-November, the Cytonn executives insisted that the transfers
were approved by BAAM’s designated signatories, and that the suits were a
wild goose chase aimed at arm-twisting Acorn into selling a majority
stake to Britam.
“I personally informed the board
of the deal pipeline… the Britam executive committee was also aware of
this deal pipeline. These disbursements had been approved for the
specific SPVs prior to release of the funds,” Mr Dande said in suit
papers.
Acorn, which was sourcing funds
for its multi-billion shilling development projects, had in October
announced its decision to ditch BAAM for Cytonn arguing that it
entrusted the project to the four executives and was willing to move
with them to their new home.
Acorn also filed an application
seeking to have Justice David Onyancha disqualify himself from the case,
arguing that Britam’s advocate Fred Ngatia had acted for the judge in
other suits, raising the question of conflict of interest. Justice
Onyancha is yet to rule on the application.
Meanwhile, Britam pushed for the
arrest and charging in court of its former employees and Acorn
executives for criminal offences, a move that required them to appear
before the Chief Magistrate’s court on November 14.
The accused however hit back at
Britam by filing petitions in the Judicial Review Division of the High
Court where they claimed that the investment firm had, in fact, not lost
any funds but was using suits in the civil division to blackmail them.
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