BY SAM ALFAN
Tatu City investors risk a jail term of six months after they have been found guilty of contempt of court proceedings issued between March and June 2015.
Justice Francis Tuiyott found foreign investors of multi billions shillings worth real estate development project Stephen Jennings, Francis Holiday, Hans Bochum Horn, Frank Mosier and Christopher Baron were found guilty for disobeying orders issued last year that directed The PriceWaterHouse Cooper to conduct independent audit the offshore loan account of the Tatu City companies with 45 days.
“I find that the 1,2,3,5 and 7 defendants are guilty of disobeying and being in contempt of the orders made in respect to orders for audit” ruled the judge.
However, the judge said he can’t commit them on jail because they were not served with the order.
“I direct Counsel for the parties herein to address me on which Firm should be appointed in place of PWC. This will enable court make further orders in regard to the order” ruled the judge.
The court was urged to ignore any allegations made against Mr Reid as he is not a party before court.
Defendants argued that , the court orders lapsed on their first anniversary and could not therefore be disobeyed.
“I make no finding against Mr Robert Reid because at the time of making this decision, evidence that he had been served with the application for contempt was not readily available to me” ruled the judge.
Christopher Barron said orders issued on 6 March and April 28, 2015 and 12 June 2015 were made without jurisdiction. He cited shareholders agreement of 13 May 2010 in which it was allegedly agreed that any dispute , claim or matter a raising under or in connection with the agreement was subject to the exclusive jurisdiction of London court International Arbitration.
High court last year ordered the international audit firm PriceWaterHouse Coopers (PWC) to conduct independent in depth audit account of the offshore loan of the Tatu City and Kofinaf Limited and to report it findings to the court within 45 days or reasonable period of time they found adequate to perform the audit.
“The audit upon completion, it should cover all issues relating to the company ,all facts and figures be laid on the auditors table by the parties to give full effect to the exercise ‘ To otherwise will render the audit exercise in futility” noted the judge.
He said Courts do not make orders in vain. The orders they make, unless reviewed, raised or set aside must be obeyed,” justice Francis Tuiyot ruled.
In support of the Notice of Motion for contempt Nahashon Ngige Nyaga (3 plaintiff) gave detailed evidence as to how the court orders in respect to the a audit were disobeyed or disregarded by the defendants, the judge said
“Despite the making of the Orders aforesaid, the defendants, acting through Mr Robert James Reid. The person mandated by the defendants and directed by the court to liaise with the plaintiff(s) in the in depth audit, have completely frustrated and scuttled the commencement of the in-depth audit by intimidating.
PwC with the result that the letter of Engagement has not been signed on account of the said intimidation and further evidence to be adduced,” Nyaga sworn affidavit read.
He attached correspondences that reveal an attempt by the rival parties and PwC to agree on the modalities of the audit that had been ordered by court.
As indicated in the correspondence from our counsel to counsel for both plaintiffs and the Defendants in this matter dated 10 August 2015 (attached) , we were proceeding with the engagement on the basis of terms of reference presented to the court as Exhibit Hj and this is what is reflected in the engagement letter. “I think it would be helpful if you could indicate the specific areas in the engagement letter which you propose to be amended to address the concern that you raise on the accuracy and objectivity of the intended review” regard George Waweru’ (my emphasize).
Reid had held himself out as having the mandate of Jennings Frances Holliday, Hans Jochum Horn, Frank Mosier and Christopher Baron, the court heard.
“Indeed in the Court order of June 12 2015 Mr Reid is identified as liaison person of the defendants, justice Tuyoit said adding “that to that extent the actions or non actions of Mr Reid cannot be over looked.” the judge ruled.
The judge said there is now evidence that has not been controverted that Mr Reid did not respond to the concerns by PwC about the letter of Engagement, with the result that the letter of Engagement was not signed and the audit did not commence “as ordered and envisioned” by the court on March 6 2015 and June 12 2015 .
Justice Tuiyot said that further evidence that there was reluctance by Mr Reid to cooperate with PwC is seen in what Stephen Jennings, the first defendant said on September 162015 during the board of directors meeting of Tatu City limited and Kofinaf Company limited.
“If the defendants had no confidence in the firm PwC Kenya then they should have sought the removal from the audit by way of a review of court orders “the judge exclaimed.
He said that instead the foreigners stonewalled on the question of the Letter of Engagement and eventually on September 23 2105 PwC asked to be excused from the exercise and court granted the request.
The judge further said the evidence that there was reluctance by Mr Reid to cooperate with PWC is buttressed by what Mr Stephen Jennings said on 16 September 2015 during the board of director meeting of Tatu City and Kofinaf Company Limited.
“We are happy to work with any recognized International Audit firm in the world with exception of PWC Kenya ….we do not want to work with PWC Kenya” said Mr Jennings during the board meeting.
Proceedings to to proceed for further directions.