JUDGES REFUSE TO HEAR KENYATTA FAMILY LAND CASE.

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Lawyers Philip Nyachoti for Kenya Commercial Bank (KCB).

BY SAM ALFAN.

Court of appeal judges have disqualified themselves from hearing a case in which two nephews of the late Jomo Kenyatta are battling with the Kenya Commercial Bank (KCB) to redeem the family’s 443-acre Muiri Coffee Estate situated in Ruiru, Kiambu County.

The two judges bowed out of the long-standing dispute in which two nephews of the late Mzee Jomo Kenyatta are battling with the Kenya Commercial Bank (KCB) to redeem the family’s 443-acre Muiri Coffee Estate in Ruiru, Kiambu County.

Justices Martha Koome and Patrick Kiage disqualified themselves from handling three separate appeals lodged by Benjoh Amalgamated Ltd, upon an application by lawyer Tom Wachakana, on grounds that they had adjudicated the matters in the High Court.

Lawyers Philip Nyachoti, for (KCB) and Issa Mansour, for Bidii Kenya Ltd, said the three appeals should be heard jointly to save judicial time.

KCB auctioned the prime property, situated off the Nairobi-Thika super-highway, in September 2007, for Sh70 million to Bidii Kenya Ltd to recover a disputed Sh1.8million loan facility secured by Benjoh Amalgamated Ltd for a horticulture project between April 1989 and 1990.

Politician Ngengi Muigai and his brother, former Kenya Army Captain Kung’u Muigai, have resisted handing over the land that was offered by Benjoh Amalgamated as collateral, arguing it was sold at a throw-away price while it was worth more than Sh700million.

In May, the Supreme Court shut the doors for both Benjoh Amalmagated and Muiri Coffee Estate to reverse the decision made on March 10, 1998, by Justices Richard Otieno Kwach, Philip Tunoi and Samuel Bosire giving the greenlight to a contentious court-sanctioned consent with KCB allowing the sale of the property following failure by the two firms to settle their indebtedness.

The five-member Supreme Court, presided over by Chief Justice Willy Mutunga, ruled that it could not re-open the case that was concluded by the final court before the enactment of the new Constitution. Further, the legality of the contentious “consent” could no longer be entertained, Justices Mutunga, Kalpana Rawal, Mohamed Ibrahim, Jackton Boma Ojwang and Njoki Ndung’u said in their 47-page ruling.

Appeal Judge Erastus Githinji, while sitting in the High Court on October 31, 1997, had set aside the purported consent between Benjoh and Muiri on one hand and KCB on the other-dated May 4, 1992-giving them a leeway to settle the outstanding balance by July 31, 1992 or negotiate sale of the expansive coffee estate through private treaty.

Benjoh’s stand was that the “consent” was fraudulent since the two firms had not sanctioned the formal agreement and never instructed their advocate, the late D.M. Kinyua, to appoint another advocate to act for them. KCB, through the late lawyer John Ougo, had insisted that the disputed loan had never been settled to the bank’s satisfaction and the auction of the property was inevitable.

Appeal Judges G.B.M. Kariuki, Daniel Musinga and William Ouko said the second-highest court in the land had no power to re-open cases that were concluded before the promulgation of the 2010 Constitution.

However, Appeal Judges Patrick Kiage, Agnes Murgor and Jamila Mohamed had allowed the aggrieved firms to petition the Supreme Court on November 7, 2014.

Nyachoti had successfully raised a preliminary objection on the basis that the long-drawn commercial dispute involving more than 18 suits and counters-suits had been concluded in favour of the financial institution and there were no special circumstances to justify further unnecessary litigation.

Bidii Kenya had argued that its legal rights as an innocent third party purchaser were likely to be prejudiced.

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