A German investor fighting over the ownership of Sh1 billion Salama Beach Hotel in Watamu, Kilifi County, wants three Court of Appeal Judges to recuse themselves from the case.
Hans Juergen Langer has filed an application for recusal of Justices Alnashir Visram , Wanjiru Karanja and Martha Koome claiming they will not deliver justice.
The investor claims the three judges hearing his claim for the ownership of the lucrative hotel accusing them of having a pre-set mind in the case.
“The appellants are apprehensive that the aforesaid bench shall be incapable of deviating or departing from the view and or opinion it had made and thus are already biased in limine,” Mr Langer said.
The three appellate judges had in December last year held a high court decision that had ruled that the appellant was not the director of the hotel and that he should surrender its ownership to Isaac Rodrot (Kenyan) and his Italian counterpart Stefano Uccelli.
Mr Langer and his wife Zahra Langer are embroiled in a battle over the ownership of the property with Mr Rodrot and Ms Uccelli.
In the judgment, appellate judges put the proprietorship of the luxurious beach resort under Mr Rodrot after it ruled that Mr Langer and his wife fraudulently took away the ownership of the hotel from him (Rodrot).
But despite this judgement which is subject of appeal at the Supreme Court, Rodrot's efforts to execute the judgment has proved futile as the appellants have used the police to keep him off the property.
Mr Langer has applied to challenge this decision at the Supreme Court.
He argued that the judges made a biased finding and thus he is apprehensive that they (judges) by default have a pre-set mind hence are incapable of making an impartial decision.
“The appellants are further hesitant that the aforesaid judges had already condemned them unheard when it failed to appreciate that the subject of fraud can only be established in a full hearing which involves witness testimony and cross-examination and not summarily by affidavit evidence,” he said.
The judges have directed the appellant to file the respondent with the application within two weeks so that the matter can be fixed for hearing.
Mr Langer had asked the court to preserve the assets including the hotel from any interference by the respondents until the ownership wrangle is settled.
The German investor has accused Ventagio International SA, the original company that owned the property, Mr Rodrot and Mr Uccelli who are directors of the hotel, of attempted theft of funds, property shares and hotel businesses.
Mr Langer claims that the respondents have invented methods to frustrate, defraud and swindle huge sums of money from him and the wife, who are the shareholders of the hotel.
However, the respondents through their lawyer Joseph Munyithya says that matter touching on possession, shareholding and control of the luxurious property had been dealt with conclusively in a judgment dated December 15, last year.
The four have been engaged in battle over the ownership of the lucrative property since 2009, and has another suit pending before Malindi Resident Judge Weldon Korir.
The German couple have claimed that the Appellate Court's judgment lacks clarity on the real shareholders of the property.