BY SAM ALFAN.
Mumias Outgrowers Company (Moco) limited now wants Chief Justice Martha Koome to appoint a three judge bench to hear a dispute over the leasing Mumias Sugar, which was awarded to Uganda-based Company Sarrai Group.
In the petition to be heard on Tuesday, Moco says the CJ should pick a bench of an uneven number of Judges- not less than three to determine the dispute.
“This Court be pleased to certify that the suit herein raises substantial questions of law and forthwith direct that the matter be placed before Chief Justice Martha Koome for appointment of a bench of an uneven number of Judges being not less than three (3) pursuant to Article 165 (4) of the Constitution,” Moco said in the application.
Justice Alfred Mabeya directed the company to serve other parties and appear for hearing of the application on Tuesday. The judge said the application should be heard first since it might dismantle the multiple cases touching on the leasing dispute, which he was set to hear.
Through lawyer Maureen Odeck, the company says that the suit raises substantial questions of law and of great public concerns to warrant the impanelment of a bench of an even number of Judges.
She said KCB appointed receiver manager PVR Rao allegedly relied on the decision of the High Court issued on November 19, 2021 in insolvency petition to illegally lease and hand over possession of the assets of the ailing miller to Sarrai Group ltd.
She said the lease was done without involvement of other creditors despite having been appointed an interim administrator by the court.
“The decision of this court in Insolvency Petition No. E004 of 2019 delivered on 19th November, 2021 is one of the triable issues in this matter and the matter in issue in this case relates to the revival of the industrial gem of the Western Kenya and any verdict is to affect over One Million Kenyans hence this matter is of great public interest,” says the company.
Moco says despite inviting public bids, Rao chose to evaluate the bids and lease out the assets in exclusion of all the other creditors in a process that was shrouded in secrecy and opaqueness devoid of any public participation and accountability in violation of the Constitution.
The company adds that in view of the scope and sensitivity of the matter and considering how the matter was transferred by Justice Wilfrida Okwany for further directions to the Presiding Judge, it’s prudent to shield the Court from undue pressure by having the matter heard by a bench of three judges as opposed to a single.
The company says there are several matters which have been filed in various courts on the same subject matter and the court ought to shield itself and the other courts from an embarrassing situation of having conflicting judgements over the same subject matter.
Gakwamba Farmers’ Cooperative Society, West Kenya Company and Mumias Outgrowers Company were enjoined in the suit as plaintiffs.
Gakwamba Farmers claimed the five farmers were unknown to them and therefore did not have authority to file the suit.
The society dragged West Kenya Company in the lease saga claiming it was the one sponsoring the five farmers with a purpose of interfering with the revival of the operations of the Mumias Sugar.
Through lawyer Danstan Omari, the society argued that the application seeking to stop the lease of Mumias Sugar filed by five farmers was an abuse of the court process and should be dismissed with costs.
West Kenya sugar Company on their part faulted the bidding process saying it was not fair as they were the highest bidder and the Ugandan firm Sarrai Group which was awarded the tender was the lowest bidder
“We will be seeking an explanation from the receiver manager and KCB on the bidding process,” lawyer Paul Muite, who represents the Sugar Factory, told the court.
West Kenya contended that the receiver Manager Ponangipali Venkata Ramana Rao action of awarding the lease to the 6th Defendant despite it being the lowest financial bidder, was pre-determined and said action is unconscionable.
Ponangipali in response to the suit claimed that awarding the lease of Mumias’ assets to West Kenya would make it a dominant player in the market under the provisions of the Competition Act, 2010.
Mumias Outgrowers Company Limited on their part claimed that Mumias Sugar Company owes them sh 7.6 billion and the determination of the matter will affect how they will be paid.
Tumaz Tumaz on their part claim they want to be enjoined as they have filed a similar suit at the Judicial Review challenging the lease contract.
