Corporate News
Triton petrol station. Triton owner Yagnesh Devani fled the country. PHOTO | FILE
By BRIAN WASUNA
British firm Glencore Energy is seeking to take its
fight for $40.3 million (Sh3.6 billion) compensation from the Kenya
Pipeline Company (KPC) for oil it lost in the 2008 Triton scandal to the
Supreme Court.
The London-based firm says in its application that the Court
of Appeal applied evidence selectively and denied it a chance to plead
its case when it ruled that Glencore’s arrangement with KPC and Triton
for the sale of its oil in Kenya was illegal.
The judges consequently threw out Glencore’s claim.
Glencore holds that the matter is one of public
interest, as it questions the Court of Appeal’s conduct in determining
cases, and will require interpretation of laws on the right to a fair
hearing as per the Constitution.
Glencore claims KPC was liable for responsibility
when it lost 31.7 tonnes of oil valued at Sh3.6 billion following KPC’s
release of the fuel to marketers without informing financiers such as
itself. The scandal saw Triton owner Yagnesh Devani flee the country.
“The learned judges in the Court of Appeal not only
disregarded the evidence on record or partially applied such evidence
as they considered, but in specific circumstances made grave findings of
fact without an iota of evidence thereby denying Glencore a right to
fair hearing,” the UK firm says.
The Supreme Court under Kenyan law only determines
matters of public interest or those that require interpretation of the
Constitution. The UK firm holds that its case involves both, hence
should be heard by the highest court in the land.
The Appellate Court ruled that the terms of storage
KPC applies in its facilities did not apply to Glencore as its
operation in Kenya was illegal, hence it could not fault the State
corporation for the lost oil.
But Glencore now says KPC made reference to the
storage terms in letters exchanged with the UK firm, hence it was
protected by the conditions of the transport and storage agreement the
corporation signs with importers.
The correspondence, Glencore adds, was part of evidence in the suit.
Judges Patrick Kiage, Stephen Gatembu and Kathurima
M’Inoti in their ruling said Glencore was using Triton as a cloak to
operate in Kenya without a licence.
The Court of Appeal ruling came as reprieve for
KPC, as Glencore had issued it with a notice of attachment for assets
valued at Sh1.2 billion.
Glencore has hit back at the judges, as it argues
that ruling on the validity of the arrangements with KPC, Triton and
Total, which was one of the buyers.
“The transaction between Total and Triton was
neither the subject of the claim by Glencore nor the defence by KPC in
the Court of Appeal. It is a matter of public interest to determine
whether the principles applicable to determination of illegality has now
been extended,” Glencore adds.
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