BY SAM ALFAN.
Sarrai Group and its senior officials have suffered a major blow after the Court of Appeal rejected an attempt to suspend summons issued to them for sentencing for contempt of court.
The officials including its owner Sarbjit Singh Rai are to appear before the High Court on Thursday morning for sentencing after they were found guilty of contempt of court.
Rai alongside Rakesh Kumar and Stephen Kihumba wanted the appellate court to put on hold the sentencing, pending an appeal they have filed.
But Court of Appeal Judges Hellen Omondi, Ngenye Macharia and John Mativo declined to suspend the sentencing.
“We are disinclined to issuing interim orders, nor can we give directions on consolidation of this matter with CA No. E 187 of 2023, our position is that appropriate directions shall be given by the Bench that will deal with this matter substantively,” ruled the judges.
The judges also directed the matter to be heard by a different bench after West Sugar company lead Counsel Paul Muite and Martin Gitonga raised concern about the bench as it was constituted.
“Due to the perception created, and outrightly expressed by the aggrieved counsel and parties in this matter that this bench has been constituted to assist the applicants seeking orders in this application, we direct that this matter be listed before a different bench excluding Justice Hellen Omondi, John Mativo and Ngenye Macharia,” ruled the judges.
Judges who seemed to be concerned about the weighty issues and allegations raised by Senior Counsel Muite on the bench constituted by appellate court acting President Justice AsikeMukhandia distanced themselves on the formation of the bench saying they have no role in fixing benches.
In their ruling, the judges said as regards the composition of this bench, they wish to make it clear that as judges, they have no role in fixing benches, nay they do not even know which matter we are going to hear until a cause list (which we also have no hand in drawing) is sent out to us from the Court Registry.
“We have no relationship of any form or colour, with any of the parties, nor have we interacted with them or their agents. The belief that this is a “tailored “bench” is a misapprehension which is totally misplaced, but we shall say no more,” said the bench.
The three were found guilty of disobeying court orders issued in July last year, directing them to cease operations at Mumias Sugar company. They were each fined Sh100,000 for disobeying the directive by Justice Dorah Chepkwony.
The court also rejected their application seeking to suspend the entire insolvency proceedings in the High Court.
High Court judge Dorah Chepkwony found the company and its owner Sarbjit Singh Rai, Rakesh Kumar Bvats and Stephen Kihumba guilty for disobeying court orders issued on July 28, last year, directing them to stop any operations at the former giant miller.
“That Sarrai Group Ltd do pay a fine of Kshs one hundred thousand as a penalty for being in contempt of court by willfully disobeying the orders of this court issued on 28th July, 2022 and forthwith purge its contempt with 15 days from the date hereof,” the judge said.
The High court judge directed the officials to personally appear before the presiding judge of the Commercial Division of the High Court Alfred Mabeya on May 18, and show cause why they should not be committed to jail for six months.
West Kenya Sugar company had opposed Sarrai’s application..
Through lead Counsel Muite and Martin Gitonga raised concern over hurried manner in which the hearing of the application was fastracked.
Sarrai Group led by Prof. Githu Muigai had urged the court to suspend all proceedings relating to the lease of Mumias Sugar company.
“The Court be and is hereby pleased to issue an order of stay, restraining any and all further proceedings in HC IP E004 of 2019, particularly and in respect of the finding of contempt vide the ruling and orders of the Justice Chepkwony dated 27th April and delivered on 28th April, 2023, pending hearing and determination of the Applicants’ Appeal,” pleaded Sarrai.
In a letter dated 15th of May ,2023, C.M Wekesa wrote to Court of Appeal president protesting the manner in which directions on Sarrai Group application were issued.
The letter raised concerns on how directions were issued on the application filed by Sarrai Group seeking to stay their sentencing by the High Court.
“With tremendous respect, the directions on the hearing of this application on 16th May, 2023 subverts the right to fair trial for the Respondents and pays no regard to the earlier directions issued by this Court on filing of responses and submissions. By 16th May, 2023 when this application is ostensibly fixed for hearing, the timelines for filing responses, rejoinder and submissions would not have lapsed given that the earliest for the pleadings to have been filed and closed on our part being submissions is 21″ May, 2023,” stated the letter.
How fair will the hearing be without the Respondents’ responses having been filed and given the directions of this court of 19th May, 2023? How can the Court of Appeal fix the application for hearing before the close of the pleadings as per timeline set by the same Court?” Questioned lawyer Wekesa adding that it was unconstitutional.
He wondered why the case was being fast tracked when there were hundreds of applications, pending before the court and we’re yet to be allocated dates.
“It is even surprising that this Court gave a hearing date of 16 May, 2025 for application E187 of 2023 without giving any directions on the filing of the pleadings. In fact, we learnt of the existence of this application through this Court’s directions fixing the hearing on 16 May, 2023. These directions were issued on Sunday 14 May, 2023,” Wekesa pointed out.
He said the circumstance under which the applications were certified urgent, directions given and the hearing of 16th May, 2023 fixed even before the expiry of filing the responses by the Respondents are troubling and raise more questions than answers.
Another complaint about how Sarrai Group application was being was sent to Chief Justice Martha Koome and Secretary of Judiciary Service Commission.
Through a letter dated 15th of May this year, Kimeto & Associate wrote to CJ and JSC a second complaint against the acting court of appeal president over misconduct.
The Law firm state that they have not received feedback from Judicial Service Commission over their first complaint and now they have been dragged again into another circus and controversy by the appellate court.
“As the pending issues in our previous complaint and petition are yet to be addressed, we have now been dragged into yet another circus and controversy by the Court of Appeal in Civil Application No. E185 of 2023-Sarrai Group Limited v Kimeto & Associates & others (E185),” states the letter.
According to the letter, the law firm wishes to raise matters of grave concern that adversely impact the 1″Respondent’s right to a fair hearing and impacts the integrity of the judicial process especially the integrity of the Court of Appeal of this country.
The Law firm is requesting for Chief Justice most urgent intervention is ensuring that justice is served and a hearing is given to the appeals filed by the appellants because the said appellants have abandoned these appeals since they are happy enjoying blanket stay orders at the behest of the court of appeal.
“It is clear that they do not wish to progress beyond the orders of stay but choose instead to file multiple applications seeking to stay the Insolvency Proceeding in the High Court,” states the letter to CJ.
Kimento & Associate Advocates is requesting for a bench to hear the matter and the bench should exclude Justice Mukhandia and other two judges who handled another civil application.
“We once again wish to request that the proceedings in the Court of Appeal are fast tracked and heard by an impartial bench that will exclude Justice Makhandia and other 2 judges that sat in Civil Applications Nos. E133 and E144 of 2022already complained of in this matter. We pray for an impartial bench of judges in the Court of Appeal who will actually provide the parties and opportunity to be heard , observe due process and issue a determination actually provided in a well-reasoned ruling and judgement provided to the parties,” states the letter.
The law firm of Kimento and associates further informed the Court of Appeal that he will be objecting to the hearing of any applications on 16th May 2023 considering the timelines for the filing of responses and submissions in E185 have not lapsed and shall seek the recusal of any judges appointed by the Justice Makhandia to hear these applications.
Furthermore, Civil Application No. E187 was served on Sunday after 5.00 p.m. and no directions relating to the filing of responses have even been issued.
