Acorn reads bias in Sh3.9bn lawsuit with Britam


Chief Justice Willy Mutunga. Acorn Group has petitioned him in the case against Britam. PHOTO | FILE

Property firm Acorn Group has petitioned Chief Justice Willy Mutunga to disqualify a judge from hearing a multi-billion shilling court case pitting it against Britam  on fears of bias.

Acorn, owned 25 per cent by Britam, has written to Dr Mutunga raising concerns that High Court judge David Onyancha is likely to be biased in the case where the Nairobi Securities Exchange-listed firm is seeking to recover Sh3.94 billion from four former executives who quit its asset management unit in August.

The property developer argues that lawyer Fred Ngatia, who is representing Britam’s asset management unit, also serves as judge Onyancha’s attorney in a separate case, suggesting a conflict of interest.

Britam has accused the former British-American Asset Managers (BAAM) executives – who quit the investment firm two months ago – of fraudulently transferring the money to bank accounts held by Acorn Group.

Suit papers say the four former Britam employees – Edwin Dande (chief executive), Elizabeth Nkukuu (portfolio manager), Shiv Arora (investment analyst) and Patricia Wanjama (head of legal) – defrauded the company of the money earlier this year.

Justice Onyancha last Thursday issued restraining orders barring Acorn and Cytonn, the real estate-focused private equity fund formed by the former BAAM executives, from transferring the disputed funds and developing any of the planned 10 real estate projects until November 12 when the case will be heard.

READ: Former Britam staff take Sh40bn real estate deal

Unfair orders

Acorn lawyers in the Wednesday letter to Dr Mutunga say the orders were issued unfairly and without giving the property firm a hearing.

“Our clients are aggrieved that the orders of injunction were issued in blatant disregard and violation of the safeguards under Article 50(1) of the Constitution. Our clients were not present to put forward their position.” reads the protest note by lawyer John Ohaga of Triple OK Law Advocates.

“It is within public knowledge that the advocate on record for the plaintiffs, Mr Fred Ngatia, acts for Mr Justice David Onyancha in HCC No. 244 of 2014. Our clients reasonably believe that there exists a likelihood of bias and partiality by Hon Justice Mr David Onyancha in hearing and determining the above matters.”

Mr Ngatia is acting for Judge Onyancha and his Supreme Court colleague, Philip Tunoi, in a case where they have sued the Judicial Service Commission (JSC) move to retire them at age 70 against the age of 74 set in the previous Constitution.

Acorn is now pushing the Chief Justice to appoint a new judge to hear the matter before the case comes up for mentioning on Wednesday next week.

The former BAAM executives set up Cytonn and teamed up with Acorn to snatch a Sh40 billion property deal from Britam, their previous employer.

Loss of the multi-billion shilling real estate project has opened what promises to be a bruising battle pitting Britam against its former employees for control of the lucrative projects that were to be developed by Acorn – where Britam is a minority investor.