STRONG DEFENCE. EFFECTIVE ADVOCACY
Former Vice President Moody Awori yesterday concluded his testimony in court by saying Muchanga Investment Ltd is the rightful owner of the disputed Sh8 billion Karen land.
Awori denied allegation by lawyer William Arusei, representing the wife of former Provincial Commissioner John Mburu, that Muchanga defrauded ex-PC Mburu to acquire the property. He was being cross-examined by Arusei.
The former politician told trial judge Elijah Obaga of Milimani Environment and Land Court that when he was a senior civil servant, he knew Muchanga had followed all procedures in buying the land.
Awori maintained he and his wife Rose Kuyumba were directors of Muchanga, when the land was transferred from Barclays Bank.
And during re-cross examination by lawyers Cecil Miller and Peter Wena, representing Muchanga, the former VP maintained he attended a board of directors meeting on April 29, 1983 that resolved to charge the land with Barclays for Sh10.5 million.
He identified some documents, which he produced in court, marked as evidence, to support claims by businessman Horatius Da Gama Rose, now deceased, that he bought the land from Barclays.
Dimitri Da Gama Rose, a general manager with Muchanga, has since taken his father’s place in the case.
Awori said he and his wife are listed as directors of Muchanga in the minutes of the board that resolved to extend credit to its holding company, Da Gama Rose Investments.
The case has previously been heard by Justice Lucy Gacheru, but has since been transferred to another station.
Awori said he was not directly involved in the purchase. He, however, says the transaction was brought to their attention, and he can confirm Muchanga bought the property. The hearing continues.
Barclays director of legal services Waweru Mathenge says the lender held the land title as a charge for a loan taken by Dimitri Da Gama Rose between 1983 and 1989, but it was released and he was given a certificate of discharge after he completed servicing the loan.
Telesource, a company owned by former NSSF Managing Trustee Jos Konzolo, had told the court it acquired the land from Kamau, who had bought it from Arnold Bradley, the original owner, on August 24, 1978. Mathenge told the court the transfer deal between Bradley and Kamau was fraudulent.
This article was published by the STAR NEWSPAPER on April 27, 2017
Former Vice President Moody Awori on Tuesday told a Nairobi court that the disputed 134 acres of land in Karen valued at Sh8 billion belongs to Muchanga Investments Limited.
Testifying before High Court judge Elijah Obaga, Mr Awori, 89, said the company acquired the land from Barclays Bank in 1983.
He said he was aware of the land purchase at the time because he was a director of Muchanga alongside his wife Rose Awori and that he had signed necessary documents.
Describing himself as a retired public servant, Mr Awori, however, pointed out that he was not directly involved in the initial resolution to acquire the land.
That decision was made by the executive director.
“Muchanga did purchase that property in 1983, I signed the document from the bank,” he said.
Mr Awori declined to respond to a query about a board resolution to acquire the property.
In his testimony, Mr Awori said the transaction happened nearly 40 years ago and he could not recall some details except for the active role he played in signing key documents.
DEFAULTED BANK LOAN
The court was told that the company bought the property because its owner had defaulted on the bank’s loan.
Da Gama Rose Investments is affiliated to Muchanga and was the one that had been given a loan from the bank. Muchanga provided security for the Sh10.5 million loan.
Mr Awori was testifying in a case in which Muchanga has sued Habenga Holdings Ltd, Jina Enterprises, Telesource.com ltd and the Lands ministry over alleged transfer of the land. The case continues today.
This article was published by the DAILY NATION on April 26, 2017
Former Vice President Moody Awori has confirmed that Muchanga Investments Limited purchased the disputed land in Karen, now valued at over Sh8 billion.
Awori told Justice Elijah Riech of Environment and Land that he and his wife Rose were directors of the company since inception in 1978.
The retired public servant while being led in his evidence-in-chief by lawyer Cecil Miller said that the company purchased the property in February 18, 1983 and thereafter it was charged to Barclays bank for a loan of Sh10.5 million.
He testified that a resolution was made by the company’s board and he personally executed the same in favour of Muchanga Investments Limited.
“The bank could have not registered the charge over the suit property if the same never belonged to the investment company,” he told the judge.
Awori said that he signed documents for advancement of the loan as the chairman of the company after it was resolved by the board.
He submitted all documents showing indeed the company owned the land and the same was used many years back to obtain bank loan and the same repaid promptly.
Several companies have staked claim to the land, among them Telesource.com, a company owned by former NSSF Managing Trustee Jos Konzolo, Habenga Holdings and Jina Enterprises.
The court heard that the bank was appointed by Arnold Bradley who owned the suit property and being the sole administrator of the land had the capacity to sell it.
It was his evidence that by time Bradley passed on in 1973, he had appointed Barclays Bank as the executor of his will directing how the land would be subdivided. The land was later sold to Muchanga Investments Limited in 1983.
Justice Riech heard that after the repayment of the loan the bank released the title deed that was held as security and the same and was given to Horatius Da Gama Rose in 1989.
The title deed was passed to Da Gama Rose through the law firm of Sharpley Barret, he told the court.
Muchanga Investments Limited through lawyer Miller at inception of the case obtained an injunction halting third parties from encroaching to the multi billion shillings property.
Awori continues to be crossed-examined Wednesday by lawyers representing defendants who have been sued by Muchanga investments Limited.
This article was published by CAPITAL FM News on April 25, 2017
Troubled Chase Bank has sued its former chairman and former senior managers seeking to recover billions of shillings they are accused of illegally siphoning from the lender during their more than a decade at the helm.
The bank, in a suit filed through its lawyer Philip Murgor, says former chairman Zafrullah Khan, former managing director Duncan Kabui, former general manager corporate assets James Mwaura and former general manager finance Makarios Agumbi used their positions to illegally acquire and benefit from the bank’s assets it now seeks to recover.
Also included in the suit are Chase Assurance and Ghengis Capital managing director Ali Cheema, Rafiki Microfinance chief finance officer Daniel Mavindu, former directors Anthony Gross and Ruth Muthoni, and a network of 11 companies said to have been used to siphon funds from the collapsed lender.
Chase Bank accuses Mr Khan of living a flashy lifestyle off plum bank accounts and prime real estate property he acquired using illicit proceeds from the collapsed lender.
The bank says in suit papers that Mr Khan, aside from being a calculative investor with a large portfolio in many sectors of the economy, also had a taste for luxury, offering as evidence his ownership of two Sh60 million top-of-the-range cars – a limited edition Corvette and a Ferrari Dino.
The vehicles were registered in his wife Shehla Khan’s name.
Ms Khan also received Sh3.5 million for upkeep, which Chase Bank now says was illegally withdrawn from its Central Bank of Kenya settlement account.
Chase Bank said it was “apprehensive that at the filling of this suit, the defendants/respondents will remove from the jurisdiction of the court, by mortgaging, (and or further mortgaging) charging (and or further charging), assigning, diminishing, transferring, disposing, alienating, operating, pledging and or otherwise interfere and/or deal their property, to defeat the orders of this honourable court.”
The suit has also for the first time indicated how the alleged crime was busted.
Investigations found that Chase Bank co-founder Laurent Demey blew the lid on the lender via an email to Mr Khan and Mr Kabui, and was copied to Richard Carter, a non-executive director on February 22 last year.
Of the Sh14.9 billion Chase Bank is pursuing, Sh1.05 billion was in bonuses irregularly paid to Mr Khan while Sh6.9 billion was paid to the network of companies owned by the defendants.
Information gathered from an audit report by Deloitte & Touche also says another Sh8.7 billion was lent to Mr Khan, Mr Kabui, Mr Mwaura and Mr Agumbi as interest-free loans but disguised in the lender’s books as Islamic banking assets.
Mr Cheema and Mr Mavindu have been linked to the scam by virtue of their shareholdings in Rinascimento Global Limited, Nine Fifty Limited, The Lighthouse Property Company, Mathatani Limited and Friends Property Holdings Limited where their co-shareholders were Mr Khan and Mr Kabui.
Chase Bank, under the care of the Kenya Deposit Insurance Corporation, reckons that the board of directors was not informed of the companies Mr Khan and other top managers established and used to purchase assets now valued at over Sh7.5 billion.
Chase Bank lawyers claim that Mr Khan, Mr Kabui, Mr Mwaura and Mr Agumbi had acquired close to 50 per cent of the bank’s shares through proxies.
Court filings indicate that Mr Khan ensured that a Sh1.05 billion bonus he was to receive over five years based on performance was paid to him in under two months of board approval.
Mr Khan and Mr Mavindu allegedly transferred Sh942 million to a company they jointly owned, Riverside Mews Limited.
The duo then transferred another Sh481 million to another company with a similar name that they co-own, Riverside Mews Investment Limited. Mr Khan is also accused of paying his company Rivieres Finance Limited “consultancy fees amounting to Sh177.2 million, Sh161 million to Ghengis Capital, and Sh48.4 to an account he holds at Iman Bank of Somalia.
The audit says Mr Khan further transferred Sh335 million to Orchid Capital, Sema Mobile Services and Chiggle Mobile services in his and Mr Kabui’s benefit.
The former Chase Bank boss also transferred Sh288 million to AMB Real Estate as an investment and siphoned Sh507 million for his “personal use” before the lender was placed under statutory management.
Mr Khan has been accused of tapping over Sh2.2 billion from Chase Bank.
Justice Grace Nzioka directed the Chase Bank lawyer, Mr Murgor, to appear before her today (Thursday) for directions.
This article was published by the BUSINESS DAILY on April 13, 2017
Former Central Bank of Kenya (CBK) Governor Prof Njuguna Ndung’u, has denied involvement in the tendering process of the controversial Sh1.2 billion security system that was clinched by UK-based Horsebridge Networks.
Ndung’u, who retired in March 2015, says he could not be held personally liable for allegedly influencing the CBK tender committee and wants the Director of Public Prosecutions (DPP), Keriako Tobiko, stopped from pressing criminal charges arising from the transaction.
In arguments filed by lawyer Cecil Miller, the former CBK boss has challenged a decision made by High Court George Odunga dismissing his judicial review application seeking to quash his intended prosecution.
The judge had said although there was no evidence of Ndung’u’s guilt, the trial court was best-placed to determine the validity of his intended prosecution. The Court of Appeal was forced to postpone the hearing of the matter and directed the parties to secure fresh dates on a priority basis.
This article was published by MEDIAMAX NETWORK on March 28, 2017
A former Central Bank of Kenya (CBK) governor has urged the Court of Appeal to bar his prosecution over a Sh1.2 billion security tender.
Professor Njuguna Ndung’u has appealed against High Court judge George Odunga’s November 17, 2014 order that he be prosecuted, saying it was an abuse of the court process.
Lawyers Cecil Miller and Peter Wena, for the former central banker, said the judge erred in law and fact by allowing Director of Public Prosecutions (DPP) Keriako Tobiko and the Ethics and Anti-Corruption Commission (EACC) to prosecute him.
Mr Miller asked the appellate court to issue an order declaring that there was no sufficient evidence gathered by the EACC disclosing any criminal act committed by the former CBK governor.
The lawyer said the EACC’s recommendation that Prof Ndung’u be prosecuted for allegedly escalating the tender in 2014 to Sh1.2 billion from the initial budget of Sh800 million did not hold water because installation costs had increased since 2006.
Prof Ndung’u also said he was not a member of the tender committee which recommended that Horsebridge Networks Systems (EA) Limited be awarded the tender for the supply, installation and commissioning of the Integrated Security Management Systems (Ismis) on May 14, 2012.
Mr Miller said 58 bidders purchased the tender documents but only six responded or submitted their bids. He said Horsebridge “quoted the sum of Sh1,219,003,971.42”.
The court has heard that, prior to the execution of the tender committee’s recommendation, the EACC began investigating Prof Ndung’u and Horsebridge filed a review.
Appellate judges Alnashir Visram, Mohammed Warsame and Sankale ole Kantai however adjourned the case when it came up for hearing on Monday, saying one of them was travelling.
“This matter will be given an early hearing date by the registry,” Justice Visram directed.
This article was published by the DAILY NATION on March 28. 2017
Every New Year brings with it a chance for every man to reflect on the previous year. Here are some men folk who stood out for me in 2016:
#1 Dr. Fred Matiang’i
It would be pure sacrilege not to start with this great Cabinet Secretary who has seized the imagination of nearly every mwananchi. And how has he done it? Not by simply doing his job, as some Kenyans say, but by going far and beyond the call of duty to be a true patriot and secure a fair future for this country’s children.
Matiang’i has shown that the Dragon of Corruption can be fought and slain, even when it breathes fire and burns schools down to the ground. He has made ‘A’ great again, and earned himself an ‘A’ for his performance in 2016. It means the other ‘ministers’ are merely middling, to mediocre, to outright corrupt or bloody useless. If Matiang’i can, why can’t they?
Matiang’i is like that bright and super helpful student in a class where some students are sleeping, some smoking bhang in the toilet while others are AWOL, unaware that First Term has started. And the headmaster and his deputy ought to ask more of this class, really.
#2 Governor Alfred Mutua
He gets an A minus for his performance, and still emerges top of the class of 47 governors. Dr Mutua dazzles when it comes to hype and delivery, and you only have to see the lights and Machakos People’s Park and compare it with the dirt and city sleaze in the capital to see the difference.
Gov Alf may be that student involved in bruising fights with others in the school yard, but in class, he is sterling. And other than his flair for theater and support of the arts, I love Alf Mutua’s originality. In a country of party and ethnic cocooning, the man has simply set up a third way, called it ‘Maendeleo Chap Chap’ and proceeded to push for tangible development.
Alf is the kind of big dreamer we will need if we are ever to go the way of Singapore some day, not petty county chiefs whose dreams consist of pinching every penny from our coffers.
#3 Binyavanga Wainaina
He was and will always be a friend I admire, right from the days he founded Kwani? to today. In an ‘African’ culture where men hide everything, I am glad he bravely came out of the closet about his sexuality and health; and that he continues to fight for his rights to at least enjoy a bit of life. And not be dogged to death’s door by institutional constraints and folks.
#4 Cecil Miller
He is that career lawyer who makes The Practice look attractive. Suave, smooth and persuasive, Cecil Miller is also sharp as a blade. With his money and mannerism, he is still down to earth with a self-effacing humor, and nothing gets this guy down. He is not just intellect with a legal degree, the dude also has great pedigree.
Papa Ahmed was that ‘homie’ from the hood who has made good. Perhaps I’m biased because we were born on the same day and hospital, but this big and tall fellow is not just great company but one of the funniest fellows I know. And I’m sure if he becomes MP of Langata, he’ll make ‘LA’ lovely again, like the ‘80s.
For the thirteenth year running, and maybe for the last time since he leaves presidency in a couple of weeks, give it up for Barack Obama.
#5 My uncle King Masese
He was that cool old man last month, negotiating the bride price alone in a room with 16 Ameru. Okay, so not quite all alone. He was with one Silas Nyanchwani. Lakini Silas is that ‘bad boy’ who throws shade on matrimony – saying before you know it, she will replace your art deco with family photos, get LG electronics (yet you love Samsung because you are team Chelsea), etc – and soon you are that married dude who lives in, and loves the local.
This article was published by the STANDARD on January 7, 2017
Kenya Railways has won its bid to lift a suspension on the construction of the standard gauge railway on a piece of land in Mombasa.
The suspension, lifted on Friday, was issued by the Environment and Land Court in June pending the hearing of a case in which Kenya Railways was accused of not compensating Africa Gas and Oil and Miritini Free Port for land the railway is supposed to pass through.
Justice Asike Makhandia of the Court of Appeal allowed Kenya Railways (KR) and China Roads and Bridge Corporation (CRBC) to continue constructing on the land, overturning an earlier ruling by the lower court requiring the two corporations to pay Sh2 billion.
China Roads and Bridge Corporation has been contracted by Kenya Railways to construct the SGR.
“We are ultimately satisfied that China Road and Kenya Railways have met the conditions for a stay of execution,” Justice Makhandia said in his ruling.
“In a number of cases this court has stated that when confronted by an application such as this one before us, it must weigh the respective hardship that each party stands to suffer, and the issue is not merely the ability of a party to pay or not to pay a particular sum of money,” he added.
The land in question, which measures 41.2 hectares, had been the subject of an inquiry at public hearings in Mombasa that were conducted by the National Land Commission (NLC).
The Commission then awarded Africa Gas and Oil Ltd Sh159 million as compensation for the land and Sh360 million for interruption of business.
Trouble, however, began after African Gas and Oil Company went to court saying they had not yet been compensated and that CRBC had already moved their equipment to the site.
Soon after, Miritini Free Port did the same, saying the government compulsorily acquired their 91-hectare piece of land but has not compensated them. The land is valued at Sh1.4 billion.
The Attorney-General, NLC and CRBC were also enjoined in the suit as respondents.
Justice Anne Omollo, sitting at the Land Court in Mombasa, halted the construction only allowing CRBC to move to the site to secure their machinery.
The respondents were required to deposit Sh519 million and Sh1.4 billion awarded to the petitioners in an escrow account.
However, KR, through its lawyer Cecil Miller, argued that the order of stay was occasioning massive daily losses of Sh37,600,000 on account of idle equipment and a workforce of 1,600 personnel, yet 70 per cent of the works on the property were already completed.
Mr Miller added that while the petitioner’s claim was for compensation of the property, the orders served no legal purpose towards the enforcement of the petitioner’s claims.
“The orders as oppressive do not serve any public interest as huge amounts of public funds had already been spent on the project including consultancies, mobilisation of human resources and plant and machinery.
“They are delaying the project and are likely to induce breach of contract which will result in high penalties, huge financial losses,” he submitted.
If the claims made by the corporation in its defence are true, then it means taxpayers will have footed an extra Sh5 billion for the construction of the Sh327 billion project, which has already been dogged by claims of over pricing of land acquisition.
President Uhuru Kenyatta, who is relying on the project to be one of Jubilee government’s key successes, has perpetually said it is on course and the phase between Mombasa and Nairobi will be completed by June next year.
This will be just two months to election.
It was thought that the case by Africa Gas and Oil and Miritini Free Port would trigger a domino effect down the line as more aggrieved property owners line up cases against the contractor, the land commission, and the Attorney-General.
So far, other than the two firms, none other had come forth.
On Monday, Transport Cabinet Secretary James Macharia said the government will spend an extra Sh49 billion for electrification of the railway.
This article was published by the SUNDAY NATION on November 27, 2016