Judge dropped from Total, Shell station suit

A fight between oil majors Shell and Total Kenya for the control of a petrol station in Kakamega town took a new twist last week after the Court of Appeal sitting in Kisumu barred Justice Juma Chitembwe from determining a case filed by the two companies.

Vivo Energy, which trades in Kenya as Shell, moved to the appellate court in April seeking to quash Mr Justice Chitembwe’s decision to grant Total possession of Maloba Petrol Station before the case proceeded to the hearing stage.

Justices Erastus Githinji, William Ouko and Kathurima M’inoti last week set aside the orders giving Total possession of the disputed property and ordered that the matter be heard by a different judge, terming Mr Justice Chitembwe’s order as an error.

“We are satisfied that the judge erred by making several definitive and final conclusions without the advantage of hearing and seeing witnesses.

The pending suit before the High Court in Kakamega be heard and determined by a judge other than Justice Chitembwe,” the appellate judges said.

Total had in its application accused Mr Timothy Maloba and Maloba petrol station of fraud, and Justice Chitembwe agreed with the firm which led to his ruling.

The Court of Appeal, however, disagreed with his decision, arguing that it was premature.

“The conclusion at that stage that Mr Maloba’s conduct was fraudulent, is even more baffling to us. The judge was not justified in making such findings at that stage,” they said in the ruling.

Shell says it moved into the petrol station in November last year after leasing it from Maloba Petrol Station Limited — which it insists is the registered owner for 20 years.

It argues that Maloba Petrol Station is the registered owner of the property hence its lease should be legally recognised.

Vivo was to pay monthly rent of Sh20.4 million for the first 10 years of the lease after which the two parties would negotiate a new rate.

Total on its part says it leased the station from Mr Maloba in 1987, a director at Maloba Petrol Station Limited for 25 years. The firm further says that it renewed the agreement in 2005 and was to continue its tenancy at a monthly rent of Sh18.3 million until 2017.

Mr Maloba acquired the land title in 1987, but it was registered in Maloba Petrol Station’s name in 1989. Total, however, continued to assume tenancy under the lease agreement which had Mr Maloba named as the registered owner.

Mr Justice Chitembwe’s ruling in April granted orders giving Total possession of the property after asking the parties to submit evidence of ownership.

The Court of Appeal has, however, ruled that Mr Justice Chitembwe was wrong in depending on the documents to issue the restraining order against Vivo and in favour of Total.

“In the case present before the judge were two parties. The first party’s (Total) lease was not registered whilst that of the second party (Vivo) was duly registered. In our assessment of the affidavit evidence, the judge erred in giving primacy to Total’s claim over that of Vivo,” the appellate judges added.

The suit is a consolidation of two cases, one filed by Maloba Petrol Station in Kakamega against Total, which Vivo has supported and another filed by Total in Nairobi fighting Maloba and Vivo.

In November last year, the two suits had conflicting restraining orders issued as Mr Justice Chitembwe granted Mr Maloba orders against Total, while Justice David Onyancha ordered Mr Maloba and Vivo to vacate the property in favour of Total.

The matters were, however, consolidated and transferred to the Kakamega High Court.