A cement manufacturer wants the High Court to set aside an order suspending a decision to charge and prosecute three businessmen for conspiracy to defraud over a plot of land worth millions of shillings in Mavoko.
The cement manufacturer and the three businessmen are embroiled in a dispute over the ownership of a piece of land in Mavoko, Machakos County.
Mombasa Cement Limited (MCL) says an intended appeal by Bharat Ramji, Harish Ramji and Ashvin Ramji against a ruling that dismissed their application to quash a police summons to investigate them for alleged forgery is not arguable.
The cement manufacturer, through its manager Evans Muigai, argues that the orders sought by the three businessmen amount to a backdoor attempt to circumvent the court's decision dismissing their case.
“In any event, the present application is an abuse of the process of the court as the applicants have filed a similar application before the Court of Appeal,” states Mr Muigai in his affidavit.
In their dismissed application, Messrs Bharat, Harish and Ashvin had also sought to restrain the police and prosecution from initiating any criminal proceedings against them.
Mr Muigai also states in his affidavit that there is incontrovertible evidence that the transfer of the land was forged to obtain title to the property.
“It is apparent that the applicants have and continue to abuse court process in order to delay and frustrate the criminal proceedings,” he said.
Bharat, Harish and Ashvin, however, argue that their intended appeal raises arguable points of law and that the court has jurisdiction to stay the proceedings pending the hearing and determination of the intended appeal in the Court of Appeal.
“The applicants are apprehensive that during the pendency of the appeal, they will be subjected to criminal prosecution contrary to their right to fair administrative action and fair hearing which will occasion a miscarriage of justice,” argue the businessmen.
The Environment and Land Court (ELC) had ruled in 2019 that the land, once owned by the National Social Security Fund, belonged to Mombasa Cement before Messrs Bharat, Harish and Ashvin appealed and the Court of Appeal ruled in their favour.
However, MCL has applied to the Court of Appeal and is seeking to introduce further evidence following the hearing of another of its applications for leave to appeal to the Supreme Court against the ELC decision.
It argues that new evidence has emerged to show that there was no clerical error as speculated by the Court of Appeal.
Rather, it says, the operative part and signature page of the purported transfer relating to LR No 11895/50 related to LR 11895/48.
“The fresh evidence was not available to the applicant (Mombasa Cement Ltd) either at the time the appeal was heard nor at the time its application for certification of leave (permission) to appeal to the Supreme Court was heard,” says the company.
The company argues in its Court of Appeal papers that the new evidence is important and confirms the fraud perpetrated by Messrs Bharat, Harish and Ashvin over the land, LR No 11895/50.
“The effect of this is that not only is there the likelihood of a gross miscarriage of justice but also that it would be morally reprehensible and not in the wider interests of the public that a clearly fraudulent transaction is allowed to stand on the basis of a decision premised on a speculative finding of a possible ‘clerical error’ in the absence of any evidence to support this,” the company argues.
