BY SAM ALFAN.
The High Court has blocked state agencies from arresting a Kenyan businessman wanted in Rwanda over alleged fraud.
Justice Anthony Ndung’u barred state agencies including the police from arresting Nathan Loyd Ndung’u, pending the determination of the case challenging his extradition to Rwanda.
“The state or any agencies of the state shall not arrest or detain the applicant upon his appearance in court and all parties are to await the outcome of the present application and preliminary objection before adverse action is taken,” ordered Judge Ndung’u.
The court summoned the businessman to appear in court on May 11, 2022 but he was apprehensive that he would be arrested when he presents himself in court.
His lawyer Nicholas Nyamai had urged the court to cancel the summons, which were issued on April 20, saying the court had no basis to grant the order.
The lawyer said the summons were issued un-procedurally and in excess of jurisdiction because the court lacks jurisdiction to give the order.
This is because the police and the Director of Public Prosecution filed a preliminary objection dated March 20, 2020 challenging the court’s jurisdiction to hear his petition and the judge is yet to determine the application.
“The proceedings before the court being civil in nature the court has no jurisdiction or basis to summon the ex-parte applicant to appear in court in the manner it has done and the said summons are un-procedural and an affront to the Ex-parte applicant’s right to a fair hearing and trial devoid of any intimidation whatsoever”, Lawyer Nyamai told the court.
He added that previously, the court declined to issue any substantive order before the issue of jurisdiction is determined.
It was his argument that unless the said summons or orders are vacated, it will give the impression that the court is biased against his client or it is not giving all parties a fair playing ground.
Lawyer Nyamai further submitted that the proceedings before the court being civil in nature the court has no basis to summon Ndung’u.
He further claims that he was detained ostensibly on the basis of alleged criminal proceedings relating to the development and sale of some houses that his company called DN International had developed in Rwanda.
Ndung’u says the housing project was the origin of the issue s before court because it faced financial crisis due to the mortgage law shift in Rwanda that brought his former company to its knees.
The businessman further adds that, in spite of the aforesaid financial challenges the debt owed by DN International was fully paid off and settlement agreement duly signed on August 22,2012 by the aforesaid company and the government of Rwanda.
He said the government of Rwanda wa represented by Justice Minister and the issue arising from the debt by DN International were civil in nature but the same have been maliciously turned into criminal issue.
Ndung’u said the housing development project and sale of the said houses was civil transactions governed by the law of contract between the parties and that at no given time at all did the same morph into a criminal enterprise that could warrant criminal proceedings.
“The issues relating to the said housing development project were successfully negotiated and settled by the DN International the developer and Government of Rwanda which was represented by the minister of justice and Rwanda Development Board in the year 2012 and settlement agreement was entered into all government relevant agencies and DN International on August 22,2012,” adds Ndung’u.
He also adds that the said Interpol Red Notice was issued was issued against him on February 24, 2012 and this was long before the said settlement agreement was entered into August 2012hence his arrest of January 31, 2022.