Triton now disowns Devani in Sh2.1bn KCB loans dispute

What you need to know:

Triton claims that KCB and PTA banks sent auctioneers to its premises on November 20 to survey its assets with an aim of disposing them.
The firm has distanced itself from an agreement in 2009 in which its assets were pledged as security for the loan that was applied for by Mr Devani.
It was placed under receivership in 2008 after Mr Devani fled the country leaving behind a Sh7.6 billion scam after Triton withdrew its stock of fuel from Kenya Pipeline Company and sold it to the market without informing financiers.

Triton is seeking to block KCB and PTA banks from auctioning its assets over a Sh2.1 billion debt on the grounds that the loan was borrowed at a personal level by fugitive businessman Yagnesh Devani.

The oil firm claims that the two banks sent auctioneers to its premises on November 20 to survey its assets with an aim of disposing them.

Triton has distanced itself from an agreement in 2009 in which its assets were pledged as security for the loan that was applied for by Mr Devani, a former director of the oil company.

The firm was placed under receivership in 2008 after Mr Devani fled the country leaving behind a Sh7.6 billion scam after Triton withdrew its stock of fuel from Kenya Pipeline Company and sold it to the market without informing financiers such as KCB and PTA Bank.

He was arrested in 2011 in London and he has been fighting to stop his extradition to face charges related to the scam in Kenya.

“That a temporary injunction be issued restraining the defendants…from selling or offering for sale…or disposing of the first plaintiff and second plaintiff companies’ assets/land parcels/plots pending hearing and determination of this suit,” reads one of the orders sought by Triton.

The bid to thwart the claims from KCB and PTA banks echoes a similar action by auto dealer Marshalls East Africa that successfully rejected a loan taken by its former major shareholder Keitan Somaia.

Marshalls in 2011 managed to get KCB to waive the Sh401 million loan taken by Mr Somaia after arguing in court that the loan was issued irregularly.

Directors of the auto dealer said that Mr Somaia applied for the loan when the firm did not have a board, adding that it amounted to a personal loan that was to be paid by the businessman who later disposed of his interest in the firm.

In the Triton case, KCB and PTA banks are allegedly seeking to sell 15 petrol stations and six undeveloped plots owned by the oil firm.

The company claims that the deeds securing its assets were signed by Mr Devani, Sunil Somaia and Mahendra Pathak without seeking approval from its directors, making the agreement null and void.

“The said deed of settlement was entered into without the consent of plaintiff companies’ board of directors and is therefore not only tainted with fraud but is void ab-initio,” says Triton.

The companies add that it is a limited liability company and therefore they cannot be forced to shoulder the debt incurred by their individual directors without seeking the board approval.

The firms further claim that at the time of the signing of the deed in 2009, Mr Pathak was not their director while Mr Somaia had resigned.

Triton director George Atetwe claims that he learnt of the deed of settlement after Mr Devani and Mr Pathak had fled the country. He accused the banks of failing to enquire if indeed Devani, Somaia and Pathak had the authority to enter into an agreement on behalf of Triton before signing the deal.

Mr Devani has been fighting attempts to extradite him from the UK. He was charged in absentia for stealing Sh955, 334,094 from KCB, and 26,216.6 tonnes of oil at the Kipevu storage facility in Mombasa valued at Sh1, 532,272,140.

The criminal case against him was later withdrawn under Section 87 of the Criminal Procedure Code. This means the same charges can be brought against him again.