Senior Counsel Ahmednasir Abdulahi for Tatu city and lawyer Denis Mosota for Anthony Njoroge who is defendant on the matter leaving Milimani law courts on Wednesday October 1, 2015.
BY SAM ALFAN.
High court has suspended the hearing of Sh 240 billion Tatu City development project to allow one of the investor to appeal against the decision of presiding judge declining to disqualify himself.
The real estate chief operating manager Christopher Barron was given fourteen days to file his appeal failure to which the matter before commercial court will proceed to full hearing.
Justice Eric Ogola, which dismissing the application for his disqualification said that allocation allegations raised against him was not supported by evidence.
He said the purported letter alleged to have send to the Chief Justice , Director of public prosecution and commission for justice and administration be subjected to investigations.
Mr Barron’s lawyer Mansur Issa did not demonstrate how judge will be bias and impartial while handling the case.
Mr Issa had told the court that he has instruction from his client Mr Barron to apply for the judge’s disqualification.
Mr Issa had said that whether merits of the allegations in the letter dated 25 August 2015 and the complaint to the chief justice the admission by the judge to the effect that he had discussed the file with other parties is violation of the principles of judicial conduct.
He’s aid that the admission itself is a good ground for re-excusal from the case, saying that the file should be placed before the presiding judge in the division to appoint another judicial officer to determine the commercial disputes between parties.
The tacit admission and the unwarranted attack on the advocate confirms that the the judge cannot impartially determine the subject matter before him, he said.
The lawyer submitted that it’s not clear whom the judge discussed the file with, is it the applicants, Tatu City, Rofinal company limited, Nashon Nyagah Vimalkumar Depar Shah or their advocates on record.
He says serious allegation have been raised which touches Sh 50 million bribery that changed hands to influence the outcome of the case.
Mr Barron applies that the judge re-excuses himself and the file be forwarded to the presiding judge of commercial and admirably division for re- allocation to another judge
The allegation contained in letter authored by Wilfred Gitonga of Kenyans and Justice and the same has been forwarded to the Chief Justice, Ethic and Anti- Corruption, Director of Public Prosecution, and commission for administrative Justice raises serious allegation over the handling of the commercial dispute.
Mr Barron says that he is apprehensive that there is real like hood of bias and confidence in the judge has been eroded in light of serious allegations by Mr Gitonga.
Last month Top consulting firm PriceWaterHouseCoopers (PWC) opted out from carrying out investigation into the accounts of Tatu City due to internal wrangle between the local and foreign partners.
Justice Ogola was told by PWC, that battle between foreign shareholders Rendearvour and their local partners Nahashon Nyaga and Vimal Shah have made it difficult for audit to be conducted as ordered by the court.
The firm says that shareholders have declined to execute document to pave way for the audit to commence.
Justice Ogola had ordered for the audit following a standoff between the shareholders on the actual position of loans taken purchase land for the project. PwC says that shareholders have not agreed on the terms of loan.
“The letter of engagement has not been signed by the parties. There appears to be hostility between the parties which may not allow us to proceed. We are a professional body and some disparaging remarks have been made about PwC by one of the parties. We therefore seek to withdraw from the assignment,” PwC lmmence the audit, but did not get a go ahead to investigate the accounts.
The judge had given parties up September 23 to file an audit report on the offshore loan accounts, but the same has not been complied with
The court directed the parties to appear before him on October 1 for a hearing.
The audit report was intended to quantify how much money had been borrowed from the offshore financiers since the project started, and what balance is still owed to lenders.
Foreign partners Stephen Jennings and Hans Jochum Horn had in an application alleged that Mr Nyagah and Mr Shah had good relationship with PwC and that there was likelihood for them to use their closeness to influence the outcome of the audit
The dispute has persisted since February and has slowed down the project. Mr Nyagah and Mr Shah alleged that the foreign partners them removed they manage the project alone
The foreign partners accuse their local partners for breach of contract by transferring land meant for the project.
.Consequently the (CID) has recommended for the arrest and prosecution of Mr Nyagah over an alleged action to defraud real estate of Sh5 billion.
Detectives investigating transactions involving the project’s subsidiaries have concluded that Mr Nyagah used close relatives and associates to irregularly transfer shares worth Sh5.3 billion, and has recommended that he and five others be charged in court.
Mr Nyagah and two city lawyers Nelson Havi and Edward Osundwa have obtained a court order stopping their arrest and prosecution.
“A time has come when judges must stop being treated the way dogs treat electricity poles-“ Justice Kwach after Ogola’s ruling on recusal from the Tatu City year.
