Business deals leave Moi with a suits burden in retirement

To many senior citizens, retirement is a time to take a break from the daily challenges of active employment and enjoy the fruits of one’s labour as one walks into the sunset years.

Not so for Kenya’s retired president Daniel arap Moi.

Also read: Moi dragged into dispute over Mombasa beach hotel

After ruling Kenya with an iron fist for 24 years, Mr Moi may have officially surrendered the levers of power but many victims of his government are yet to accept this reality – at least going by the number of suits they have filed against him in court.   

So many have been the suits that Mr Moi now features prominently in the list of former heads of state to have faced an avalanche of legal challenges upon retirement.

From business related cases, property disputes and alleged gross human rights violations he allegedly committed in office, the lawsuits have continued piling up by the day.

Many of the suits are of a civil nature but had to wait until Mr Moi retired because as president the law shielded him from both criminal and civil suits.
In the list of legal battles that Mr Moi has to fight in retirement are those originated by his former business and political confidants turned foes.

The former president is, for instance, currently embroiled in property and business disputes in Nairobi, Mombasa and Nakuru.

The catalogue of suits that the 87-year-old retired president faces is long and growing, leaving him with a huge litigation bill that runs into millions of shillings.

His lawyers won’t discuss how much they are charging Mr Moi to fight the cases, citing the delicate nature of client/advocate relationship.

Mr Moi has retained the legal firm of Education minister Mutula Kilonzo — currently run by his son Kilonzo Junior and daughter Kethi Kilonzo.

A Nakuru-based lawyer, Juma Kiplenge, also handles some of the cases.

Top in the list of the cases facing Mr Moi is the Sh2 billion penalty that Justice Jeanne Gacheche ordered him to pay former intelligence chief-turned-business partner Stephen Muriithi in April last year.

Mr Moi has appealed against the decision.
The dispute has, however, been more valuable in unveiling the behind the scenes business deals Mr Moi cut during his 24-year reign.

Lady Justice Gacheche found Mr Moi guilty of detaining Mr Muriithi, the former deputy director of the defunct Directorate of Security Intelligence, and a business associate.

She ruled that Mr Moi was personally liable for detaining the ex-spy chief for three years without trial and ordered him to pay Sh50 million as punitive damages and Sh80 million as compensation, with a 12 per cent compound interest from July 1982.

Mr Muriithi accused Mr Moi of unlawful detention with the sole intention of taking over property they co-owned.

Mr Moi, who has since obtained a stay of execution of the judgment and orders issued in favour of Mr Muriithi until the appeal is heard and concluded, argues that the judge erred in failing to appreciate the nature and extent of the jurisdiction that was conferred on the High Court under Section 60 of the Constitution.

He maintains that the judgment was contrary to the law, arbitrary in material respects and lacking in legal precedent.

Court records indicate that Mr Moi and Mr Muriithi jointly owned parcels of land in Nairobi and Nakuru and that much of the property was sold while Mr Muriithi was in detention in 1982.

Other properties Mr Moi is accused of taking from the former spy-chief include Corner House, Atlas Building, Ruprani House and Kenwood House in Nairobi.

Mr Moi also narrowly escaped personal liability in a case in which a former MP sued him over detention without trial following the 1982 attempted coup.

While awarding former MP Otieno Mak’Onyango Sh20 million for the suffering he underwent after the abortive coup, Justice Kalpana Rawal cleared the retired president of any blame for the legislator’s detention and incarceration at the hands of state agencies.

“It would be unjust and unwarranted to make a Head of State personally responsible for failures or misdeeds of state officers without showing his direct participation. The evidence of personal involvement of Mr Moi is completely unavailable to the court,” the judge ruled.

“The head of state is not synonymous with the person holding that post unless he is shown to be involved for personal gains or vendetta,” Lady Justice Rawal ruled in a suit Mr Moi was named as a respondent to and where Prime Minister Raila Odinga testified as a witness for Mr Mak’Onyango.

Mr Moi is also embroiled in a litany of property disputes in Nairobi and Mombasa, which his lawyers are confident that he will win.

“Some of the suits have no legs to stand on but the litigants are just taking advantage of the old man because he no longer wields power,” said one of Moi’s lawyers who preferred not to be named because the cases are in court.

In Mombasa, former nominated MP Rashid Sajjad and businessmen Mohammed Bawazir and Mohammed Zubedi have lodged a suit against Mr Moi, accusing him of using State resources to harass them into altering the terms of an agreement for a 0.49 piece of beach land he allegedly sold them for Sh7.5 million in 1993.

The dispute is awaiting determination.

Mr Moi is also in the Court of Appeal seeking to retain control of a private beach hotel in Mombasa. African Safari Club claims in suit papers that it cannot file tax returns for Flamingo Beach Hotel after it was taken over by state officers on instructions of Mr Moi.

The ownership row has seen the hotel file a suit against the Police Commissioner, Internal Security PS and Moi’s lawyer, Mr Kiplenge.

African Safari Club says in its petition that police officers and Bisam Security Company agents are occupying Flamingo Beach Hotel, have locked out the employees and threatened to arrest anyone who dares to access the property.

Appellate judges Onyango Otieno, Alnashir Visram and Martha Koome are expected to deliver a verdict this week.

And in Nairobi’s High Court, directors of Tulip Properties Ltd, which claims to have bought a 14-acre piece of land in Embakasi from Mr Moi for Sh25 million, are fighting over the property with four businessmen who are also claiming ownership.

The company insists it bought the property from Mr Moi but the businessmen insist they were allocated the property by the Commissioner of Lands.
In 2006, Mr Moi won a land dispute against Malcom Bell, a farmer in Nakuru, who had accused him of illegally acquiring 110 acres of land that belonged to his father, the late Walter Bell.

The Court of Appeal dismissed the case.

Another businessman in Eldoret, Joseph Wainaina, also sued Mr Moi in 2006 for breach of a sale agreement in a land transaction but the former president won the case.

Numerous high profile cases have also been filed against Mr Moi by former human rights activists who are seeking compensation for general, punitive and exemplary damages on the basis that they were illegally subdued, tortured, jailed or detained without trial during his 24 years of autocratic rule.

Though many of these cases have involved Mr Moi directly, there has been a large amount of collateral damage.

Kenya’s two senior most Court of Appeal judges Riaga Omolo and Samuel Bosire have been recently sent packing by the judges and magistrates vetting board on grounds that some of the decisions they made involving powerful political figures were prejudiced.

Mr Omolo was shown the door after the board found inconsistencies in judgements he made on political cases he presided over.

“The negative impact of the way in which the judge adjudicated at a time when his objectivity and impartiality were being tested was profound and contributed significantly and in a lasting way to the loss of public confidence in the Judiciary in matters where powerful political figures were involved,” ruled the board.

The board said that the judge on his own admission had stated that he had failed Kenyans and the victims of the Nyayo House torture chambers, “but he showed inadequate appreciation of how deeply and negatively the actual judgements he had delivered had impacted on public confidence in the fairness of the Judiciary.”

His counterpart Justice Bosire was faulted for ending the Goldenberg Inquiry without summoning Mr Moi to question him over his role in the multi-billion shillings mega-scandal that nearly brought the country’s economy to a halt in the 1990s.

The board’s decisions just revealed how deep rooted Mr Moi was in the control of the third arm of government – a reality that some analysts are now linking to the increase in the number of suits against Mr Moi nearly 10 years after he left power.

In fact, under the old Constitution, Mr Moi enjoyed monstrous powers to appoint High Court and Court of Appeal judges.

But after the promulgation of the Constitution, sweeping reforms have been undertaken to free the judiciary from strangulation by the executive and freedom in adjudicating court matters.

Mr Moi’s close confidants and family members such as Joshua Kulei, his former aide, have been drawn into some of the cases and are fighting a string of suits in various courts – related to corruption.

The former president’s son Philip has more recently been in the news cast into the limelight by a bitter matrimonial battle against his estranged wife Pluda who is seeking maintenance cash.

A warrant for Philip’s arrest was issued two weeks ago after Justice GBM Kariuki ruled that he be taken to prison for contempt. Philip has also lodged a voluntary bankruptcy plea to shield himself from paying Sh7 million due to Ms Pluda. 

Three farmers have also sued Mr Moi’s daughter Ms Jennifer Kositany accusing her of grabbing 25 acres of land in Njoro, Nakuru.

The plaintiffs claim to have bought the land in 1995 from a former director of Agriculture Development Corporation (ADC).