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FORMER CS SEEKS TO BLOCK LIQUIDATION PROCEEDINGS AGAINST OVER ALLEGED DEBT

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Former Cabinet Secretary Aisha Jumwa .

BY SAM ALFAN.

Former Cabinet Secretary Aisha Jumwa has moved to court seeking to stop Bevaj Furniture limited from commencing any liquidation proceedings against her over Sh60 million, arising from the purchase of a property worth Shm215 million.

The former CS is seeking a temporary injunction restraining Bevaj Furniture ltd from commencing any liquidation proceedings against her on the basis of a demand dated March 18, 2024 pending hearing and determination of the case.

The dealer had given Jumwa 21 days to pay the stated amount in full plus interest following the purchase of a property Title Number 12672, L.R. NO. 7785/951 (Original number 7785/10/689, NAIROBI/BLOCK 196/921.

“Further take notice that failure to pay the aforesaid amount shall result in Bevaj Furniture ltd filing for a bankruptcy order against you,” reads the statutory demand.

Jumwa, however, says the demand is improper, irregular and an abuse of court process as the same seeks to arrogate to the court jurisdiction to determine a dispute that is solely within the mandate of an arbitrator, as per the agreement signed by the parties.

She further stated that the demand was an attempt to embarrass and present her as an individual that is wholly incapable of settling her debts.

The politician said there is no evidence of her insolvency and or inability to pay the debt, and the principle of exhaustion demanding that all alternative dispute resolution mechanisms, as provided for, must be exhausted before any suit is commenced.

The former CS argued that Bevaj Furniture ltd is in breach of contract as it did not provide for the extra furnishings and decorations.

“Any alleged failure by the Applicant ( Jumwa) to complete payment of the purchase price can only be termed as a breach of contract, which falls squarely within the definition of a dispute arising out of the Agreement, and within the mandate of the Arbitrator appointed according to the terms of the Agreement,” she said.

She said it is trite that where an Agreement outlines the manner of dispute resolution, parties are not at liberty to seek alternative redress unless and until the said mode of dispute resolution is applied to finality.

Jumwa maintained that she is a salaried person capable of paying her bills if and when they become due. She was not, by any measure, insolvent or incapable of settling her debts, she added.

“Consequently, this Court lacks jurisdiction to entertain or hear this matter. It is therefore in the interest of justice and fairness that this Court sets aside the Statutory Demand dated 18th March 2024 and refers the dispute to arbitration in accordance with the agreement between the parties,” pleads the former public service CS.

NDARAGUA POLICE COMMANDER RISK BEING SENT TO JAIL FOR SIX MONTHS OVER THE FAILURE TO BE A COURT DIRECTIVE.

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BY SAM ALFAN.

The officer commanding the Ndaragwa police station Sebastian Mwika risked being jailed for six months over the alleged failure evict a family from a parcel of land as directed by the court.

In an application seeking to commit Mwika to jail, the estate of late Benjamin Ithinyai Narangui said the police boss had failed to effect the court order as directed on June 10, 2022.

In the directive, Mwika was required to evict Angela Gethi and Murua limited and their family members and servants from a property known as L.R No.7381(IR 6406/1).

The police boss was also required to ensure the demolition of the buildings and structures erected on the disputed land.

However, through lawyer Kethi Kilonzo, the family said the OCS has failed to implement the decision, despite being served with the order.

The lawyer said the trespassers have refused to vacate the land, prompting the families seeking to recover the property, to seek the police assistance to remove them from the suit premises.

The family of Ithinyai and that of late Ndurere Muhunya Gathii want the OCS summoned to explain why he should not be jailed.

“The contempt is further aggravated by the fact that the Officer Commanding Station is a Law Enforcement Officer. This Court has a duty to ensure that its Orders are complied with,” family told the court through lawyer Kethi Kilonzo.

Lawyer Kethi told the court that it is in the interest of justice and the sanctity of the Court and the rule of Law that the application should be allowed to commit the OCS to jail of six months.

The court issued orders on 28th July 2022 directing the Officer Commanding Station of Ndaragua Police Station to supervise the eviction of Gethi and company from L.R No. 7381 (IR 6406/1) as well as demolition of the buildings erected on the said land.

“The Order was served upon the said Officer on 6th December 2023 together with a Penal Notice who acknowledged receipt by stamping the forwarding letter to which the Court Order was attached,” lawyer Kethi for the family told the court.

The lawyer told the court that efforts to get the Officer to comply with the Court Order have proved futile as the Officer has failed and or refused to comply with the Order of the Court.

“The failure by the OCS continues to deny the Defendants the fruits of their Judgment,” kethi told the court.

EAST AFRICAN DEVELOPMENT BANK OFFICIAL ADMIT PART OF LOAN BY BORROWED BY EX-CS TUJU WAS NEVER DISBURSED.

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East African Development Bank (EADB) David Odongo testifying in court where he admitted that the lender did not disburse part of the loan borrowed by former cabinet secretary Raphael Tuju./PHOTO BY S.A.N.

COURT DISSOLVES UNION BETWEEN COUPLE SAYING NO PARTY SHOULD BE FORCED IN LOVELESS MARRIAGE.

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High Court Judge Samuel Mohochi.

BY SAM ALFAN.

No law or religion can bind a man or a woman where love and feelings no longer exist, a judge has ruled.

High Court judge Samuel Mohochi said a party in a union cannot be forced to co-exist in a union with no love or feelings at the behest of religion.

The judge made the decision while dissolving a 21-year-old marriage.

“Court accordingly allows the Petition dated 2nd July, 2020 and Cross-Petition dated 7 September, 2020. The Hindu marriage between the Petitioner and the Respondent is hereby dissolved,” ruled the Judge.

The court further ruled the woman shall have custody of their child for the next one year until the minor attains the majority age.

After that the girl will be at liberty to decide how she relates with her parent or where she may reside with.

The man was allowed to have visitation rights to the child.

Further, the man was directed to transfer their residential house described as Raj Courts Milimani-Nakuru into the name of their child after she attains 18 years old or within the next twelve months from the date of the decision.

While allowing the dissolution of the Hindu marriage court noted that the two postured that their marriage has irretrievably broken down, adultery, denial of conjugal rights and cruelty have been laid down in counter accusations.

The husband had filed for divorce case before a Nakuru court.

Evidence filed in court showed that the two got married under Hindu Marriage and Divorce Act and were blessed with one kid born in 2006.

In response to the divorce application by the husband, the woman told the court that she believed they were still compatible and that the marriage can be salvaged should the man mend his ways.

The two were married for 21 years but separated in the year 2020 under what the man terms as due to drama, shouting, agreements and abuses from his now former wife.

The man denied assaulting the woman either physically, emotionally or forcefully removing her from their house. He also denied allegations by the wife of having extra marital affairs or denying her conjugal rights.

“I have been providing for my family during the marriage and after leaving  i have been paying upkeep and medical,” man told the court.

The man told the court that when he came from Mombasa there was a gold. His wife had one key to the safety deposit box and the other was with the bank. The wife had the custody until 2009 when he found out that she was borrowing from people and he also found out that she took all the gold in the locker belonging to their family despite him giving her money to run the house. 

He prayed that the Court does grant the divorce and order for the wife to return the gold as it never belonged to her that according to Hindu customs, upon divorce the same should be returned.

He stated that the gold issue has never been settled and not in the Children’s Court. He added that he paid her 15 million plus 10 million that the Petitioner’s dad had left her before his death. He intends to transfer the house to their daughter when she turns 18.

The wife testified that she was a house wife and that the husband has not been providing, has been having an affair and was violent. She stated that he only paid house rent and Sh. 30,000 for three staff, food for the family and dogs.

That he would get violent whenever they did a budget.

She added that the husband has been living with a third party and had been doing so six months prior to their separation. She admitted to receiving 25 million though the house has not been transferred. The 10 million was a gift from her father-in-law and the 15 million is for herself not for her daughter.

She added that there was a children’s case that was ongoing and that the transfer of the house was never raised in the children’s court but it ought to be. She admitted to taking the gold only that it belonged to her family and the sister had taken half of the gold. That what they gifted her was fake gold.

TEMPORARY REPRIEVE FOR DHL AS COURT SUSPENDS SH9 MILLION TO FORMER CEO.

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BY NT CORRESPONDENT.

DHL worldwide Express Kenya limited has been handed a temporary reprieve after Court of Appeal suspended the payment of millions awarded to a former company finance officer.

Court of Appeal judges Gatembu Kairu, Jessie Lesiit and Ngenye Macharia suspended the Sh9.1 million compensation awarded to Oliver Matiko.

The former chief finance officer had been awarded the amount by Employment and labour Relationship Judge Ongaya.

The judges said they were satisfied that the company had established to their satisfaction that the firm had an arguable appeal.

The court agreed with DHL that Matiko might be incapable of repaying the money, if the firm’s appeal succeeds.

“In the circumstances we allow the application dated 27th November 2023, and grant a stay of execution of the judgment of the Employment and Labour Relations Court dated 27th November 2023 pending the hearing and determination of Civil Appeal No. E106 of 2024,” the judges said.

The company faulted the judge for applying higher standard of proof, misapprehending the facts and evidence adduced and therefore failing to evaluate the evidence in its entirety.

DHL further accused the judge of misapprehending the senior position and role of the former employee in the approval of the unauthorized amendments to the 2018 and 2019 employees Handbook.

The company was apprehensive that the former employee will undoubtedly move to enforce the court decision by demanding the payment of the amount.

The company contended that the execution process had commenced as it has been served with Notice of Taxation dated 5th February 2024, and that Mwita’s Party & Party Bill of Costs is set to be taxed on 8th February 2024.

In addition, it is apprehensive that it will be unable to recover the said sum of money from Mwita if the colossal decretal sum is paid as per the impugned judgment as Mwita’s means are unknown to it.

Mwita opposed the appeal arguing that the company that the applicant has no arguable appeal.

He argued that the application for stay has since been overtaken by events and it is therefore futile for the Court to grant an order of stay.

BUSINESSMAN DENIES FALSELY OBTAINING MONEY BY FALSE PRETENSE.

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Mohamed Chamud Hussein before court./PHOTO BY S.A.N .

BY NT REPORTER.

A businessmen have been charged with conspiracy to defraud an oil firm of Sh4 million.

Mohamed Chamud Hussein appeared before Milimani Chief Magistrate Bernard Ochoi and denied the charges.

Chamud, a director of Shooble Energy limited are alleged to have falsely pretended that they were in a position to assist the complainant trade in petroleum product obtained Sh. 3.5 million.

It is alleged that he committed the offence between July 7, 2020 and February, 2021 within Nairobi County, with intent to defraud.

A further charge stated that he and his co-director obtained Sh15.5 million from Khalid Mohamed Jamal using fraudulent tricks.

The court further heard that Chamud obtained Sh4 million from Nuur Ahmed Sheikh by falsely pretending that he was capable of paying him interest from money invested into the company.

It is alleged that he committed the offence on diverse dates between 13th July, 2021 and 12 February 2022, in Nairobi jointly with other not before Court.

The court issued a warrant for the arrest of Shole Abdifatah Ali Husseina, a co-director of the company.

He released on a cash bail of Sh1 million

ABSA AND KCB BANK FIGHT OVER CONTROL OF SAVANAH CEMENT.

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Savanah Cement limited. /PHOTO BY S.A.N.

BY SAM ALFAN.

Loss-making cement maker Savannah Cement has been caught up in a vicious court battle pitting two banks as each lender seeks to assert control over its assets.

Absa Bank moved to court early this month accusing KCB Bank of frustrating efforts for an out-of-court settlement of the multi-billion suit.

Absa claims in the application that KCB Bank filed a petition intending to undermine and frustrate the ongoing administration process.

The lender now wants the KCB appointed receiver and manager removed stating that they were frustrating the administrator from implementing the statement of proposals passed on 17th April 2024 at the first creditors of the company.

Absa said the parties had earlier agreed to explore an out court settlement whereby the application was withdrawn to allow the administrator process to continue as directed by the court.

However, KCB ignored to pursue the settlement and instructed the receiver and manager to frustrate and undermine the administrator from carrying out his duties.

Absa wants the court to order the removal of PVR Rao and Ponangipalli Swaroop Rao or any other person acting or purporting to act on their behalf from interfering with the administrator’s control.

“That this honourable court be pleased to remove Mr Ponangipalli Venkata Ramana Rao and Mr Ponangipalli Swaroop Rao from office as the receivers and managers of Savannah Cement ltd,” Absa said in the application.

The lender want the court to direct OCS Athi River Police station to provide security and enforce the orders by the court.

Absa revealed that following the court order on March 19, this year, the administrator prepared the settlement of proposals.

The statement of proposals set out the manner in which the company’s affairs were managed, including the details of the steps taken since his appointment and recommended course of action for consideration.

The administrator held the first creditor’s meeting on 17th April and during the meeting, the creditors who were present and voting in person or proxy accepted the said statement of proposals unanimously.

The Administrator prepared a Report and filed it in court.

However, the receiver & manager are frustrating the implementation of the Report.

“Since the unanimous voting and adoption of the said Statement of Proposals and Report, KCB , the appointee of the said Receivers & Managers has frustrated the administration process as demonstrated below, KCB filed an application dated 16th May 2024 opposing the implementation of the said Report and Statement of Proposals,” Absa said.

Absa said a visit at the Athi River based company revealed a costly vandalism of critical infrastructure and equipment, which allegedly happened under the watch of the Receivers & Managers to the detriment of the value of the assets of the Company.

TEMPORARY WIN FOR ST. BAKHITA PARENTS AS COURT BLOCK FEE INCREMENT.

By Nairobi Times -
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BY SAM ALFAN.

The High Court has temporarily suspended a bid by St Bakhita Schools to increase school and extra-curriculum fees, pending the determination of a case filed by parents.

Justice Janet Mulwa suspended decision by the management of the school to adjust the fees upwards as stated in a notice sent to parents in March, 2024.

The court further suspended the invoices for term II of year 2024 issued by the St. Bakhita Schools, St. Bakhita Daycare& kindergarten and St. Bakhita Junior Junior Secondary school parents on or about 9th April 2024.

“The defendants fees structure for the period 2024- 2025, prior to the impugned notice dated 28th March 2024 issued by the Defendants to the Plaintiffs shall remain in place and in force pending hearing and determination of the suit,” ruled Judge Mulwa.

The court directed the case to be fast tracked and be heard and concluded on priority basis due to its urgency, and in any event within 120 days from the date of the ruling.

The Judge Mulwa dismissed preliminary objection raised by the St. Bakhita schools.

“I am satisfied upon materials placed before court that the Plaintiffs have established a prima facie case probability of success and the plaintiffs would suffer greater harm than the Defendants would suffer should the temporary  injunction they seek is denied,” ruled Judge.

The parents moved to court to block the management from implementing the decision to increase fees as contained in invoices for Term II of year 2024.

They stated that the economic factors have not changed significantly for period January 2024 and May, 2024 and abide by the established school fees policy of increment after every two years and the last such increment having been in 2023 the next expected increment was from 1st term January, 2025 and provided a pattern of increments from 2011 to date.

Further, parents submitted that the notices having been issued by one of the companies, who was not a party to the contract for services.

They submitted that under this Basic Education Act, parents ought to be involved in matters affecting the learners including school fees and failure by the defendants to engage the parents and the Parents Teachers Association was wrong.

The PTA supported the case an argued that failure by St. Bakhita schools to engage with PTA for an amicable solution will cause irreparable damage and loss to the parents as well as the PTA which is a core stakeholder in the running of the schools.

“The  St. Bakhita’ actions and overlooking its involvement in the fees increment notice was in contradiction with the spirit of the Act regarding parental involvement and violates principles of procedural fairness as the act emphasizes collaboration and transparency in school governance, suggesting that stakeholders should be heard on matters affecting them, “submitted the PTA. 

It was further submitted that the St. Bakhita unilateral decision in the fee increment disregards the duty of good faith as well as the duty to consult as it is an established practice of PTA participation in financial planning that creates a legitimate expectation of consultations which schools failed to uphold in the circumstances relying on the holding in the Mawego Primary Schools Parents Association. 

St. Bakhita urged the court to find no merit in the parents adding that the current fees structure is not sustainable the last increment having made in January, 2023 when it increased fee by Sh. 6,000.

The schools argued that parents expectation that fees would always be increased after every two years was misplaced as no such conditions is stated in the contract entered into by the parents and schools cites the contract clause that the management reserves the right to vary fees at its sole discretion.

KRAs BID TO TAX CLUBS ENTRANCE SUBSCRIPTION FEES THWARTED BY HIGH COURT.

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High Court Judge Prof. Nixon Sifuna who has blocked Kenya Revenue Authority from collected Value Added Tax and subscription fee at golf and sport clubs./PHOTO BY S.A.N.

BY SAM ALFAN.

Attempts by Kenya Revenue Authority to impose value added tax on entrance and subscription fees at golf and sports clubs have been rejected by the High Court.

High Court Judge Nixon Sifuna upheld a decision of the Tax Appeals Tribunal blocking KRA from collecting 16 percent Value  Added Tax (VAT) on annual subscription and entrance fees on golf and sports clubs.

“The consolidated judgement that the Tax Appeals Tribunal delivered on 27th March 2020 in the said appeals is hereby upheld, with the consequence that the joining fee (entrance fee) and members subscription fee of Golf clubs are exempt from Value Added Tax (VAT), “ruled Justice Sifuna.

KRA sought to overturn the decision of the tribunal blocking the taxman from demanding the fees.

Four clubs, Sigona Golf Club, Thika Golf Club, Kiambu Golf club, Ruiru Golf club and the Kenya Golf Federation successfully quashed the demand for fees by KRA.

The authority had demanded about KSh 40 million in taxes from the four clubs, for the years 2015 and 2016.

The taxman had argued that due to the exclusivity of the clubs’ membership, there was rational basis to charge taxes on the subscription fees.

According to the taxman, the clubs were purely in business and not philanthropic entities as they had counter-argued.

Justice Sifuna dismissed KRA’s appeal stating that the taxman was that targeting every source of a business’ income in a case of ‘sheer caprice’ and ‘whim’ – a detriment to the operations of any business.

BLOGGER RELEASED AFTER DENYING CHARGES RELATED TO CYBER BULLYING.

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Francis Ng'ang'a Gaitho before Milimani Chief Magistrate court where he denied cyber bullying charges. /PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

A social media influencer has been charged with publishing false information and cyber bullying on subjects related to the anti-government protests.

Francis Ng’ang’a Gaitho appeared before Milimani Senior Principal Magistrate Robinson Ondieki and denied the charges levelled against him. 

The charge against Gaitho stated that he intentionally published false information against the Directorate of Criminal Investigations. 

It is alleged he posted false information on X social account identified @FGaitho237 on July 15.

The prosecution alleged that Gaitho posted. “The @DCI-Kenya have released the names and photo of Collins Tomaisu Khalisia as the so-called serial killer linked to the bodies found at Kware Dumpsites. However, there are no public records of such a name but cross-referencing the images on the X reveals that his names are Jairus Onkundi, a graduate from Meru University of Science and Technology”.

The charge sheet further quotes Gaitho that, “Government Propagandists like @ItsMutai and TheStarKenya have gone full- throttle running unverified names which don’t appear anywhere on social media. It’s a desperate move meant to pacify the restless masses who have voted threat Ruto must vacate office because he cannot kill us and lead us.The Githurai and Rongai massacres which are being suppressed by the corrupt mainstream and international media. Triggered escalated reports of missing persons and not before the protest.”

The police said that Gaitho published the information with intent that the data would be considered or acted upon as authentic by the public. 

According to his lawyers, Gaitho was a respectable journalist and will present himself in court whenever required hence not a flight risk.

He was released on a cashbail of Sh 30,000.

The matter will be heard on 14th August.

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