A former top envoy in the late President Mwai Kibaki’s government has failed in his bid to reverse the auction of his property in Nairobi’s prime Gigiri area last year over a debt owed to Credit Bank.
High Court judge Peter Mulwa dismissed the application by Harry Mutuma Kathurima, stating that the property had been sold and the court would refrain from interfering with the bank’s right of statutory power of sale.
The judge said the law contemplates damages in instances where the former ambassador demonstrates the sale was irregular.
Justice Mulwa said Mr Kathurima had made numerous applications in a bid to stop the bank from auctioning the property. The Business Daily could not immediately establish the size of the debt.
“I am inclined to agree with the defendant (the bank) that the conduct by the plaintiff is both vexatious and frivolous, the end goal being to stop the sale and transfer of the charged property,” said the judge.
The former ambassador to Germany had sought a court order, reversing the sale of the property on June 5, 2024, arguing it was unlawful. He also sought an order to compel Garam Auctioneers and the bank to pay him the balance of the purchase price.
Mr Kathurima maintained that he was the registered owner of the property, which he had charged to the bank for a loan.
He said he stumbled on a notice on May 28, 2024, stating that the property was to be auctioned on June 5 and the forced sale eventually took place but that it was conducted fraudulently, based on a fraudulent evaluation report and fraudulent and unscrupulous accounting methods.
He also claimed that the property was undervalued.
Mr Kathurima told the court that the public auction was a sham and a gimmick and the entire process ran afoul of the fundamental provisions governing a chargee’s statutory power of sale.
The bank’s head of legal department Francis Wainaina opposed the case in an affidavit stating that the court did not have jurisdiction to determine the case.
Joseph Gikonyo of Garam Auctioneers defended the sale saying it was conducted by the legal requirements.
The judge said there have been a number of applications that sought to restrain or otherwise set aside any action by the bank.
Justice Mulwa said of notable concern was the application on February 24, 2023, which among other orders, sought to restrain the bank from selling the property.
The court noted that after the application was argued, an injunction was granted on condition that Mr Kathurima deposited Sh50 million within 60 days, failing which the order would be set aside.
“The plaintiff having failed to comply with the conditional orders, the defendant went ahead to exercise its statutory power of sale culminating in the sale of the suit property to the first proposed interested party (Mr Hitesh Morjaria), hence the instant application,” said the judge.
Justice Mulwa said it was clear from the orders issued in March 2023 and the court’s decision to reject his application for an injunction a few months later that the latest application bore elements of abuse of the court process.
Mr Kathurima worked as a District Officer in Malindi in the 1970s, before moving to the Office of the President as an Assistant Secretary in 1985. This was followed by a posting as Secretary of State from 1991 to 1997, where he worked as chief of protocol.
In 2004 he was appointed to the Foreign Service and served as High Commissioner in New Delhi. During the two-year stay in India Mr Kathurima was also accredited to Bangladesh, Singapore, and Sri Lanka. From August 2005 to September 2010, he served as Kenyan ambassador to Germany.
