Mr Ngengi Muigai. PHOTO | FILE
The quarter century legal dispute pitting two companies
belonging to cousins of President Uhuru
Kenyatta against a leading lender has taken a new dimension after a lawyer, who purportedly signed consent to sell the Sh3 billion coffee estate, denied acting for the borrowers.
Kenyatta against a leading lender has taken a new dimension after a lawyer, who purportedly signed consent to sell the Sh3 billion coffee estate, denied acting for the borrowers.
Benjoh Amalgamated and Muiri Coffee Estate
-- owned by businessman Ngengi Muigai – have armed themselves with the
lawyer’s sworn affidavit denying the alleged consent to file a fresh
suit seeking nullification of a December 15, 2017 Court of Appeal
judgment that paved the way for Bidii Kenya Limited, the company that
bought the land from a bank for Sh70 million, to occupy the property.
Benjoh,
through its managing director Kung’u Muigai, has contested Kenya
Commercial Bank’s (KCB) decision to sell the land arguing that the
lender relied on fraudulent accounts to execute the sale.
Benjoh
and Muiri in a suit filed under the certificate of emergency are
seeking to re-open, review and set aside a judgment rendered on December
15, 2012 giving Bidii control of the land.
Judges
Roselyn Nambuye, Milton Makhandia and Kathurima M’Inoti had found that
the issues Benjoh and Muiri Coffee Estates had taken before court were
res judicature (determined long ago) and proceeded to allow an appeal by
KCB that sought a declaration that the bank had legally sold the land.
But
in the fresh application filed by lawyer Kyalo Mbobu, Benjoh and Muiri
argue that they have come across fresh evidence indicating that
lawyer Gedion Kaumbuthu Meenye, who is said to have signed the consent
settling the case between Benjoh and KCB, was not the company’s lawyer
on record and had not been asked by lawyer D. M Kinyua to hold brief in
the case.
The two companies are now asking the Court of
Appeal to review the December 15, 2017 judgement and another read in
1998 allowing KCB to sell the land.
KCB had advanced
Benjoh Sh23million to finance a flower project, whose feasibility study
the bank did and found viable. Benjoh had offered two properties in
Nyandarua County as security for the loan and a Sh11.5million guarantee
by Muiri.
The bank chose to sell the guarantor’s property when the borrower defaulted, sparking off the 25- year land battle.
Benjoh
and Muiri are asking the second highest court in the land to re-open,
review and set aside its two impugned judgements or in the alternative
certify its case as a matter of general public interest and refer it to
the Supreme Court for determination.
The applicants
argue that sale of the property amounts to a flagrant breach of their
constitutional rights as it was based on fraudulent bank accounts.
Meanwhile,
police have now moved in to investigate how the consent order, which
settled the debt was obtained after Mr Meenye complained that there was
mischief.
“I request you to cause an inquiry into the
allegations that I acted for Benjoh, as it is obvious that someone is
playing some mischief. The allegations are impacting on me negatively,”
Mr Meenye says in the letter to the Inspector-General of Police Service
Joseph Boinnet.
“I did not execute the said agreement
nor could I possibly have done so since I was not the Advocate on
record, had not been instructed by advocates on record to hold brief nor
had I been instructed by Benjoh/ Muiri to appear and or represent them
in the said case,” Mr Meenye says in the affidavit filed in the court of
appeal February 22,2018.
Mr Mbobu says in light of the
new evidebnce it is prudent to “re-open, review and set aside the
December 15, 2017 and March 10, 1998 judgements, which have been used to
continually subjugate and defeat the applicants’ (Benjohs) rights.”
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