The quarter century legal dispute pitting two companies belonging to cousins of President Uhuru Kenyatta against a leading lender has taken a new dimension after a lawyer, who purportedly signed consent to sell the Sh3 billion coffee estate, denied acting for the borrowers.
Benjoh Amalgamated and Muiri Coffee Estate -- owned by businessman Ngengi Muigai – have armed themselves with the lawyer’s sworn affidavit denying the alleged consent to file a fresh suit seeking nullification of a December 15, 2017 Court of Appeal judgment that paved the way for Bidii Kenya Limited, the company that bought the land from a bank for Sh70 million, to occupy the property.
Benjoh, through its managing director Kung’u Muigai, has contested Kenya Commercial Bank’s (KCB) #ticker:KCB decision to sell the land arguing that the lender relied on fraudulent accounts to execute the sale.
Benjoh and Muiri in a suit filed under the certificate of emergency are seeking to re-open, review and set aside a judgment rendered on December 15, 2012 giving Bidii control of the land.
Judges Roselyn Nambuye, Milton Makhandia and Kathurima M’Inoti had found that the issues Benjoh and Muiri Coffee Estates had taken before court were res judicature (determined long ago) and proceeded to allow an appeal by KCB that sought a declaration that the bank had legally sold the land.
But in the fresh application filed by lawyer Kyalo Mbobu, Benjoh and Muiri argue that they have come across fresh evidence indicating that lawyer Gedion Kaumbuthu Meenye, who is said to have signed the consent settling the case between Benjoh and KCB, was not the company’s lawyer on record and had not been asked by lawyer D. M Kinyua to hold brief in the case.
The two companies are now asking the Court of Appeal to review the December 15, 2017 judgement and another read in 1998 allowing KCB to sell the land.
KCB had advanced Benjoh Sh23million to finance a flower project, whose feasibility study the bank did and found viable. Benjoh had offered two properties in Nyandarua County as security for the loan and a Sh11.5million guarantee by Muiri.
The bank chose to sell the guarantor’s property when the borrower defaulted, sparking off the 25- year land battle.
Benjoh and Muiri are asking the second highest court in the land to re-open, review and set aside its two impugned judgements or in the alternative certify its case as a matter of general public interest and refer it to the Supreme Court for determination.
The applicants argue that sale of the property amounts to a flagrant breach of their constitutional rights as it was based on fraudulent bank accounts.
Meanwhile, police have now moved in to investigate how the consent order, which settled the debt was obtained after Mr Meenye complained that there was mischief.
“I request you to cause an inquiry into the allegations that I acted for Benjoh, as it is obvious that someone is playing some mischief. The allegations are impacting on me negatively,” Mr Meenye says in the letter to the Inspector-General of Police Service Joseph Boinnet.
“I did not execute the said agreement nor could I possibly have done so since I was not the Advocate on record, had not been instructed by advocates on record to hold brief nor had I been instructed by Benjoh/ Muiri to appear and or represent them in the said case,” Mr Meenye says in the affidavit filed in the court of appeal February 22,2018.
Mr Mbobu says in light of the new evidebnce it is prudent to “re-open, review and set aside the December 15, 2017 and March 10, 1998 judgements, which have been used to continually subjugate and defeat the applicants’ (Benjohs) rights.”