UK firm takes Triton pay dispute to Supreme Court

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.

READ: KCB sells off Devani's assets in Sh2bn Triton row

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.