BY SAM ALFAN.
Former Jubilee Secretary General Raphael Tuju has been handed a huge reprieve after the Supreme stopped the planned auction of his high-end hotel, Dari Restaurant situated in Karen.
Supreme Court Judges Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u stopped East African Development Bank (EADB) from selling Tuju’s property.
“A conservatory orders staying the execution of the judgment of the Court of Appeal dated 20th April, 2023, pending the hearing and determination of this application,” ruled Supreme Court.
The top court further suspended several proceedings including insolvency applications brought against Tuju and his children Yma, Alma and Mano.
The Supreme court also froze the appointment of Muniu Thoithi and George Weru as receivers managers appointed by East African Development Bank, to take over the establishment.
“Applicants will be highly prejudiced if the Orders sought are not granted and, in the event, that the Applicants succeed on Appeal, they will not be able to recover any money paid in satisfaction of the Judgment at all,” Tuju said in the petition.
The former cabinet secretary said the regional lender is established by a Treaty between East African states and enjoys immunity from legal proceedings.
Through lead Counsel Paul Muite, Tuju and his hotel told the Supreme Court that the judgment delivered by Justices Kathurima M’inoti, Imaana Laibuta and Mwaniki Gachoka was faulty.
He wants the appeal to be allowed and the Judgment of the Court of Appeal dated 20th April, 2023 be set aside.
Tuju further seeks the Supreme Court to declare that the Judgment delivered on 19th June, 2019 and the order issued pursuant thereto by the High Court of Justice Business and Property Courts of England and Wales, Queens Bench Division, Commercial Court by Daniel Toledano QC sitting as a Deputy Judge of the High Court of England and Wales is unenforceable as it was obtained in a manner that violates Article 50 of the Constitution of Kenya and the rules of natural justice.
” The decision of the High Court of dated and delivered on 13th February, 2020 be set aside and be substituted with an order allowing the petitioners’ Amended Chamber Summons dated 13th January 2020 and setting aside the recognition and registration of the Judgment of the High Court of Justice Business and Property Courts of England and Wales, Queens Bench Division, Commercial Court by Daniel Toledano QC sitting as a Deputy Judge of the High Court of England and Wales in Claim Number CL-2018-000720, and all consequential orders,” seeks former CS.
The High Court ruling of 7th January, 2020 recognized the the Judgment delivered on 19th June, 2019 by an Engine court.
Dari Limited and Tuju’s said they have satisfied the principles that ought to be satisfied in an application for conservatory orders pending the hearing and determination of the Petition of Appeal as one.
The restaurant told the court it has an arguable appeal which will be rendered useless unless the decision is suspended. Tuju further said it is in the public interest that the application is allowed as prayed.
“Unless this Application before Court is certified urgent, heard on priority and allowed as prayed, the said application and the petition of appeal will be rendered nugatory and purely an academic exercise for the following reasons,” Restaurant told the court.
Dari ltd and Tuju’s told the Apex Court that in the event that Appeal succeeds, all acts done in furtherance of the recognized, registered and executable United Kingdom Judgment will be prejudicial and detrimental to him as he stands to suffer irreparable harm.
He said his properties are likely to have been transferred to third parties not subject to these proceedings through execution and enforcement proceedings commenced by Dari ltd and Tuju’s.
“East African Development Bank will lose ownership of their properties contrary to Article 40 of the Constitution and they will not be prejudiced in any way if the Orders sought are granted as the respondent holds securities being charges over LR No. 1055/165 and LR No. 11320/3 under the Facility Agreement dated 10th April, 2015,” Restaurant told the court.
Veteran lawyer Muite told the supreme court that the High Court recognized and registered the judgment of the British courts.
“The decision of the High Court of Kenya dated and delivered on 13th February, 2020 be set aside and be substituted with an order allowing the Petitioners’ Amended Chamber Summons dated 13th January 2020,” the petition reads.
The United Kingdom Judgment of 19th June, 2019 is for the payment of the amount of USD 15,162,320.95 which amount the Respondent is now at liberty to execute against their property.
The dispute between the parties emanates from a Facility Agreement dated 10th April, 2015. The Bank has instituted various insolvency proceedings against them has issued statutory demand notices, appointed receiver managers to the charged properties belonging to Dari Limited in enforcement of the impugned United Kingdom decision of 19th June, 2019 with the aim of dispossessing the Applicants, thereby infringing on their right to property as protected by the Constitution.
“By the actions of the Respondent, the applicants will suffer irreparable loss as they will be deprived of ownership of their property in manner not envisaged by law,” Tuju’s told the Apex court.
In his supporting affidavit Tuju told the court that the United Kingdom Judgment of 19th June, 2019 is for the payment of the amount of USD 15,162,320.95 which amount the Respondent is now at liberty to execute against them.
He added that vide a letter dated 24th April, 2023 Bank have through their appointed receiver managers Muniu Thoithi and George Weru have written to them in a bid to execute and enforce of the provisions of the Debenture dated 10th April, 2015 executed in furtherance of the Facility Agreement dated 10th April, 2015 whose enforceability is the dispute in the appeal before the Court.
“It is therefore in the interest of justice that the orders sought in this application be granted as we stand to be greatly prejudiced if the Bank proceeds to execute and enforce the foreign Judgment obtained on 19th June, 2019,” he said.
They argued court of appeal judges of the Court of appeal erred in law and by failing to appreciate and give effect the supremacy of the Constitution and the sovereignty of the people of Kenya enshrined in Article 2, 3 & 4 of the Constitution in considering and determining as they did the appellants’ Appeal.
By interpreting the Foreign Judgment (Reciprocal Enforcement) Act in a manner that rendered Kenyan law subservient to English law, the Learned Judges of the Court of Appeal contravened Kenya’s the right to self-determination, a foundational component of sovereignty enshrined in Articles 1, 2, 3 & 4 of the Constitution.
Tuju fault Judges for failing to set aside the recognition of the Foreign Judgment on the ground that the same was manifestly incompatible with the public policy of Kenya and resulted from proceedings incompatible with the requirements of due process of law as the Appellants had no adequate opportunity fairly to present their case before an impartial court.
“The Judges of the Court of Appeal erred in finding that the right enshrined in Article 50 of the Constitution to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a competent Court can be limited by deference to the Laws of England, contrary to Article 25 of the Constitution,” say’s Tuju in the court documents.
Tuju further adds that the court erred in law by failing to adjudicate on the High Court’s failure to interrogate, in their entirety, the grounds raised by the appellants in the appellants’ Application to set aside the registration and recognition of the foreign judgment.
“In so doing, the Learned Judges of the Court of Appeal failed to give effect to the Appellants’ right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a competent Court contrary to Article 50 of the Constitution,” he adds.
He faults the judges for finding that the High Court Judge had properly exercised her judicial discretion notwithstanding that both the exercise and the resultant decision violated the Appellants’ right to a fair trial under Article 50 of the Constitution.
