BY SAM ALFAN.
Former Cabinet Minister Raphael Tuju has won a major reprieve after the High court blocked the receiver managers appointed by a regional lender from taking over his property in Upper Hill over a disputed loan.
Justice Dorah Chepkwony ordered East African Development Bank to stay away from Tuju’s property on Masaba Road.
The lender has appointed Kereto Marima as the receiver manager on the property registered in the names of S.A.M Company ltd and Dari limited.
“The Notice of Appointment of the second Respondent (Kereto Marima) as Receiver and Manager dated 28th July ,2022 be and hereby stayed pending hearing and determination of the suit,” the court ruled.
In a 23 page ruling, Justice Chepkwony ruled that S.A.M Company ltd and Dari ltd had met the threshold for granting of a temporary injunction.
The judge heard that the appointment of Marima was malicious and made in bad faith, potentially circumventing court orders and violating applicants’ rights.
Justice Chepkwony said EADB had not shown to hold other valid and enforceable securities which ensures that they can recover their loan without appointing a Receiver manager over the Masaba Road Property.
The former cabinet secretary said EADB appointed Marima as Receiver and Manager of the S.A.M Company pursuant to a Debenture dated 10 th April, 2015.
He said the Debenture required a first legal charge over the Masaba Road Property to perfect the security, which was never registered by the company.
Tuju added that the Masaba Road Property was already charged to the Bank of Africa.
He said the appointment of Marima was illegal and without any legal basis.
Tuju sought court orders to prevent further interference by the regional lender.
Through an affidavit of Felix Muhati Bank of Africa explained how the lender charged the property after advancing a loan to Tuju’s firms.
Muhati who said he is employed by the Bank of Africa as a Senior Recoveries Officer, Debt Recoveries said pursuant to a letter of offer dated 12th September, 2014, the Bank extended a credit facility to S.A.M (the chargor).
The Chargor executed the letter of offer and accepted all the terms and conditions contained therein.
The loan amount was Sh121 million and Sh41 million was to be utilized to facilitate a takeover of the borrower’s outstanding loan at Kenya Commercial Bank Limited.
The balance, he said, was to be utilized to advance partial equity injection to the Company to facilitate acquisition of land and construction of a Boutique Hotel in Karen area under the name Dari Coffee Gardens and Restaurant Limited.
The facility was repayable in 156 monthly instalments.
According to Mahati , on 29th May,2015 , the Bank extended further credit facilities to the chargor comprising of Sh.148,179,058.99 and Sh.41 million which were utilized to facilitate takeover of the borrower’s outstanding loan at KCB Bank.
