BY SAM ALFAN.
High Court has blocked African Development Bank from auctioning former Cabinet Secretary Raphael Tuju Karen Properties.
High Court Commercial Division Judge Josphine Mongare issued the order temporarily blocking Knights Valuers , African Development Bank and Graham Investment Auctioneers from selling Tuju’s properties located in Karen.
“An order of temporary injunction restraining the Defendants/Respondents herein, whether by their themselves, their employees, servants, auctioneer, agents and/or assignees from disposing of, transferring and / or selling by the public auction of 29th October, 2024 or any other date the Plaintiff/Applicants’ properties being L.R. NO. 11320/3, Entim Sidai Wellness Sanctuary, Tamarind Karen and Dari Business Park in Nairobi,” ruled Judge Mongare.
This is after Tuju filed an application seeking to block the sale of his luxurious hotels in Karen questioning the value of the properties as indicated by a property management firm.
Tuju and Dari limited wants the court to issue temporary injunction blocking Garam Investments Auctioneers from selling the properties based on a report prepared by Knight Frank Valuers limited.
East African Development Bank hired the services of the auctioneer to sell exotic Entim Sidai Wellness Sanctuary and Tamarind and Dari Business Park, over a debt of Sh4.5 billion.
Tuju said the report prepared by Knight Frank valuers ltd is null and void as it offends section 97(2) of the Land Act and cannot be utilized for purposes of exercising any purported power of sale by the lender in respect of the properties.
The former Jubilee party secretary general further said the notifications of sale by public auction served upon him and Dari ltd dated 24th July, 2024 are illegal, null and void and therefore incapable of enforcement.
“A declaration that the impending or concluded sale or transfer of L.R. NO 1055/165, Tamarind Karen and Dari Business Park, off Ngong, Karen, and L.R NO.NO.11320/3 Entim Sidai Wellness Sanctuary, off Tree Lane, Karen, Nairobi pursuant to the said notifications is unlawful, illegal, null and void,” seeks former CS.
Tuju urges the court to issue permanent injunction restraining the Bank from selling, interfering or advertising for sale the two properties, based on the report prepared by Knight Frank Valuers ltd.
He further pleads with the High Court to issue permanent injunction restraining Bank, Valuers and auctioneer, its workers, agents or anyone acting on its behalf from advertising attaching selling alienating transferring or in any other way interfering with the Tujus’ ownership of all the properties.
Tuju told the court that EAD bank has through Graham Investment Auctioneers unlawfully issued Notifications of Sale on the basis of valuations prepared by the Knights Valuers dated 15th July 2024 and subsequently advertised to dispose of his property being Entim Sidai Wellness Sanctuary, Tamarind and Dari Business Park scheduled for October 29, 2024.
He said the valuations prepared by the Knights Valuers for being inaccurate, illegal and failing to satisfy Section 97(1) and (2) of the Land Act contravening Articles 40 and 46 of the Constitution and offending Article 10(1)(b) [as read with Article 10(2)(c)] of the Constitution and violating the Tujus’ rights under Sections 3(4)(c)&(d),5(1), 12 and 15 of the Consumer Protection Act.
“Without the intervention of this Court as sought by the plaintiff applicants in this application, the Plaintiff/Applicants face the impending danger of illegally being deprived of their properties contrary to Article 40 of the Constitution,” adds Tuju.
He adds that he and his company therefore stand to suffer prejudice and irreparable harm given the unique and irreplaceable nature of land and in particular the land in question should this Honourable Court decline to grant the orders sought for in the instant application.
“Conversely, the Bank, Valuers and auctioneer will not suffer any prejudice should this Application be allowed,” submitted Tuju.
According to Tuju, the said valuations have never been properly served on the him and are based on previous valuations that were never served on them denying them the opportunity to query and contest the same;
“The valuation reports contain gross factual inaccuracies including but not limited to the Tree Lane valuation claiming that there is a swimming pool on the property when none exists and alleging that Villa No.2 on the property is 35% complete when in fact it is fully complete and is leased at a rent of Sh.500,000 per month,” says Tuju.
He further argue that the valuation reports also erroneously omits to identify Sheltered Areas as required by the under the International Property Management Standards, which standards are ratified by the Kenya Valuation Standards.
He further adds that the reports further fail to itemize floor area on a level-by-level basis as required by the aforementioned standards. The valuation reports are characterized as “desktop valuations” based on “verbal and web-based enquiries” making it evident that the valuations do not bear any credible relationship to the actual condition and values of the properties on the ground.
He also adds that the valuation reports are unreasonable due to their inaccuracies and therefore violate the Plaintiff’s rights under Sections 3(4)(c) & (d),5(1), 12 and 15 of the Consumer Protection Act as well as defeating the intended purpose of Sections 97(1) and (2) of the Land Act to ensure the best price reasonably obtainable is secured for properties sold pursuant thereto which cannot be achieved on the basis of false and inaccurate valuations.
It is Tuju’s arguments that the reports seek to charge illegal fees stating that fees will be charged on the basis of reasonable time expended and expenses contrary to the Third Schedule of the Valuers (Forms and Fees) Rules.
“Any purported forced sale taking place on the basis of the said impugned valuations will therefore offend Section 97(1) and (2) of the Land Act, be illegal and void ab initio and subject the Plaintiffs to irreparable harm and prejudice land, and in particular this land, being a unique and unsubstitutable asset,” says the former CS.
He claim that Valuers,Bank and auctioneer through their false and illegitimate actions wish to illegally deprive the Plaintiffs of the properties thereby violating their rights under Articles 40 and 46 of the Constitution and offending Article 10(1)(b) [as read with Article 10(2)(c)] of the Constitution.