Can judges review rulings and judgments if it emerges that they were misled into reaching particular conclusions?
That is a question that five Court of Appeal judges – Milton Asike-Makhandia, Kathumira M’Inoti, Sankale Ole Kantai, Francis Tuiyott and John Mativo – face in a case stemming from a land dispute that has haunted the Judiciary’s hallways for 32 years.
Benjoh Amalgamated, a firm owned by former President Uhuru Kenyatta’s cousin Kungu Muigai, has made yet another attempt to stop its loss of a 443-acre land in Thika, this time seeking a review of a 2017 Court of Appeal decision.
KCB Bank auctioned the land, with Bidii Kenya as the highest bidder in 2007.
Just hours after the Court of Appeal bench retired to write its ruling, Bidii Kenya evicted the land’s occupant – Muiri Coffee Estates. Muiri is co-owned by Mr Kungu and his brother Ngengi Muigai.
Bidii evicted Muiri on the strength of a 2014 court order, with the assistance of police.
As the Court of Appeal case was proceeding, Kiambu police boss Michael Muchiri was before High Court judge Freda Mugambi promising to enforce the 2014 eviction order.
A few minutes to 4pm, auctioneers hired by Bidii Kenya marched into the vast land, escorted by police officers, and evicted Muiri Coffee Estates. It is the first time since 2007 that Bidii Kenya has occupied the land.
Benjoh Amalgamated borrowed Sh23 million from KCB Bank in 1988 and used two pieces of land in Nyandarua as security. Muiri Coffee Estates came in as a guarantor and offered a 443-acre farm in Thika as security.
After Benjoh Amalgamated defaulted on payment, the bank went straight for Muiri’s coffee farm.
Benjoh and Muiri first sued KCB in 1992 to stop the auction of the farm. A deal was struck which would see Benjoh repay the amount, with KCB free to auction in the event of default.
But the court file went missing as Benjoh Amalgamated denied ever entering such a settlement deal with KCB, sparking numerous court cases and appeals that have since become precedents that judges and lawyers use in their usual line of work.
In 2017, the Court of Appeal dismissed one of Benjoh’s cases, holding that the 1992 settlement had been confirmed by several other courts hence the matter could not be reopened.
Benjoh in 2018 sought a review of that decision, arguing that new evidence had come to light.
Gideon Kaumbuthu Meenye, a lawyer who had allegedly agreed to the auction of Muiri’s farm in the event of default, wrote to the police inspector general, denying that he ever represented Benjoh or entered into any settlement on the company’s behalf.
On Monday, Benjoh’s lawyer Kyalo Mbobu told the Appellate judges that police investigations have confirmed that there was never any settlement deal and that the court should review its 2017 orders.
That decision, if reviewed, could spell doom on nearly 25 rulings and judgments related to the auction of the coffee farm which all went against Benjoh and Muiri on account of the disputed settlement deal.
“The matter (of the settlement deal) has been confirmed again after thorough investigations, and by officers of the court, that the document does not exist. That is a matter that the court in its own motion, without an application, can call for that file and review orders issued,” Mr Mbobu said.
Mr Mbobu answered in the affirmative when asked by the judges whether Benjoh’s entire case hinged on whether the settlement deal exists.
KCB’s lawyer Philip Nyachoti insisted that it would be an absurdity to reopen the matter when other court orders are already in effect on the basis of the numerous rulings and judgments by several judges.
“There is no justification or explanation on why it has taken all these years to clarify that issue of the consent. Even when that issue was in the judgment of March 10, 1998,” Mr Nyachoti said.
In 2007 Bidii Kenya bought Muiri’s land at an auction.
Through Issa Mansur, the firm said that whether Mr Meenye was instructed to act for Benjoh is a question that should have been raised in six other appeals that have since been dismissed.
Benjoh had asked the Court of Appeal to stop a contempt of court application before the High Court, which Bidii Kenya sought against the Kiambu County commander, Michael Muchiri.
Bidii filed the application claiming that police have refused to effect a 2014 court order to supervise Muiri’s eviction.
Just hours after the Court of Appeal gave a June 21 ruling date and adjourned the case, Bidii Kenya evicted Muiri from the 443-acre farm with the assistance of police officers.
