- Mr Muigai had lodged an appeal against the Court of Appeal’s ruling that gave KCB the green light to sell the land belonging to the businessman’s company.
President Uhuru Kenyatta’s cousin, Ngengi Muigai, has lost a Supreme Court appeal seeking to stop KCB from auctioning a 443-acre piece of land he used as security for a loan in 1988.
Kenya’s top court Thursday declined to delve into whether judges can rely on proceedings in missing files to make a decision in cases where parties differ on the pleadings.
Mr Muigai had lodged an appeal against the Court of Appeal’s ruling that gave KCB the green light to sell the land belonging to the businessman’s company, Muiri Coffee Estate Limited.
The judges Thursday ruled that Mr Muigai did not raise the question of missing files in the High Court and the matter could therefore not be the basis of his appeal at the superior courts.
Mr Muigai had argued that his firm suffered a series of defeats in the lower courts on the strength of a disputed document contained in a file that went missing.
Muiri has since challenged the existence of the document-an agreement permitting KCB to auction the land if he defaulted on the loan.
Mr Muigai also claimed that one of KCB’s lawyers in the 1992 case only identified as Mr Meenye had not obtained a practising certificate from the Law Society of Kenya (LSK) when he represented the lender and that his participation in the matter should therefore have been declared null and void.
“The foregoing prayers form the foundation of the case as it was framed before the High Court. It is evident that the question of the importance of a missing record of a court has not been raised,” the judges held.
They added that the Court of Appeal in 1998 and 2006, while still the highest court in Kenya, answered the same question in a separate appeal by Mr Muigai.
“In asking this court to pronounce itself on the propriety of a missing record of the High Court, we are being called upon in the very first place to determine the question of the legality of the consent made by the parties in that missing record. That question was settled as far back as 1998. It is not conceivable that this court should reopen that consent,” the Supreme Court judges ruled.
The case before the Supreme Court was first before the High Court in 2008 when Bidii purchased the disputed land.
The judges held that the main issue raised in the Court of Appeal was whether Muiri’s concerns had been answered in separate cases, and not whether missing files can be relied on.
“Accordingly, the proper question that by the applicable procedure could be brought up to the Supreme Court is whether the High Court case (from 2008) was rightly dismissed by the Court of Appeal for being res judicata (raising matters that have been settled by other courts of competent jurisdiction),” the judges ruled.
The ruling now means Muiri will have to vacate the land and allow Bidii to take possession of the land it bought for Sh70 million at the auction. Mr Muigai in separate suits faulted KCB for allegedly undervaluing the land which he insisted is worth over Sh3 billion.
KCB sold the contested land in 2007 to recover a loan Muiri charged as part of a Sh11.5 million guarantee he offered a KCB borrower.
Muiri guaranteed another firm associated with Mr Muigai — Benjoh Amalgamated — in 1989.
Bidii Kenya Limited which bought the land through an auction accused Mr Muigai’s firm of abusing the court process as it had unsuccessfully tried in 11 separate cases to stop the auction of the land.
The real estate firm argued that several judges have ruled that the bank was right to auction the land to recover its money after Mr Muigai’s firms — Benjoh Amalgamated and Muiri Coffee Estates — failed to repay the loan advanced by KCB.
KCB on its part insisted that the dispute with Mr Muigai’s firms is of a contractual nature and not of public interest.
Mr Muigai had in the Court of Appeal claimed that KCB refused to furnish it with a statement of the loan account before auctioning the land but went ahead to auction the land.
Despite dismissing Mr Muigai’s appeal, the judges admitted the importance of court records, pointing out that the case before it was just one of the many in which missing files have compounded on legal battles.