Prof Ndungu’s appeal in Sh1.2bn tender case set for September

Former Central Bank Governor Prof Njuguna Ndungu has appointed Cecil Miller to represent him in the Court of Appeal where he is challenging the decision by DPP to charge him over the award of Sh1.2 billion security tender for the bank.

Miller takes over from Donald Kipkorir who represented Prof Ndungu at the high court over the same matter.

When the case came up for hearing on Thursday before Justice Sankale Kantai, Justice Jamila Mohamed and Justice Philomena Mwilu, Miller told the court that he had just been instructed and needed time to file his submissions.
The court allowed his application for adjournment and directed he files his submissions within 10 days; DPP and EACC do so within seven days.

The bench further directed that the date for the hearing of the appeal be taken on priority basis in the month of September 2016.

Professor Ndungu moved to Court of Appeal after his application for judicial review was dismissed by the High Court.

Justice George Odunga dismissed the application challenging the criminal trial and consequently gave the EACC and DPP the green light to prosecute him.

The judge said that it’s the trial court, that is best placed to determine the allegation and that Professor Ndungu will be able to defend himself efficiently before the magistrate.

“I am therefore not convinced there is sufficient reason to stop the impending prosecution it is highly and likely that he will be accorded a fair trial,” he said.

This article was published by CAPITAL FM NEWS on July 28, 2016

Railway agency asks court to allow SGR construction to continue

The Kenya Railway Corporation (KR) has gone to court to overturn orders issued against the construction of a standard gauge railway at Miritini.
KR says the national government will lose Sh30 million per day if the orders remain in force. Lawyer Cecil Miller told judge Anne Omolo that since the day the orders were issued, the construction company, China Road and Bridge Construction, has been losing Sh30 million per day maintaining the equipment and other activities on site.
Miritini Free Port had gone to court to stop the construction of the railway on its land after the Government through the National Land Commission failed to pay the Sh1.4 billion in compensation fees it was awarded. “It is in the public interest that this order granted by this court be vacated to allow the construction of the railway to proceed so as to stop taxpayers from losing Sh30 million per day,” Mr Miller told the court.

He said KR had partnered with the construction firm to build the railway, and it had mobilised equipment on the plot and if the orders remained in force, some of the equipment would rust. Public interest “This order is against public interest because the money being lost belongs to the taxpayers,” he added.
China Road lawyer, Wamuti Ndegwa, denied claims that his client had disobeyed a court order and applied to have the company ordered to pay the losses the construction company was incurring every day. And the National Land Commission lawyer, Simon Mbuthia, submitted that Miritini Free Port owners had not been compensated because there was a dispute over the land, which was raised by the county government, which questioned the rightful owner of the land.

“Upon receipt of complaints from the County Government of Mombasa over the propriety, NLC conducted a review process to establish whether the petitioners are the legitimate owners of the suit land,” said Mr Mbuthia.

Mbuthia accused Miritini Free Port directors of failing to disclose to the court the true status of matter when they sought ex parte orders. He said since the court was now aware that there was a dispute over the rightful owner of the land, then the stay order the company was given should be vacated to allow NLC find out whether the company should be compensated.

Last week, Miritini Free Port lawyer Michael Oloo successfully applied for an injunction against the construction of the railway, complaining that his client rights had been violated by not compensating them.

This article was published by the STANDARD NEWSPAPER on Jul 8, 2016

Halted SGR construction costing taxpayers Sh37.9m daily

Kenya Railways is losing Sh37.9 million daily following the suspension of the construction of the Sh327 billion standard gauge railway on a piece of land in Mombasa, a court heard.

Through lawyer Cecil Miller, the corporation said the situation will continue to get worse should the court order stopping the construction remain.

“It is not in the public interest to sustain the orders, “Mr Miller told Mombasa Environment and Land Court Judge Ann Omollo.

According to the corporation, it has been losing 376,000 US dollars every day since the construction was suspended by the court on June 24. The loss is attributed to workers pay, expenses for running sites and for contracted supplies.

Mr Miller opposed the application by African Gas Oil Company Ltd to have the construction halted pending hearing and final determination the suit, arguing that the court should balance the rights of the petitioner and the public.

African Gas Oil Company stopped the rail construction on the strength that it’s yet to receive Sh519 million awarded to it by the National Land Commission as compensation for ceding the land for the mega project.

But transfer of the funds were stopped after African Gas Oil ownership of the land was questioned.

CONSTRUCTION STOPPED

Mr Miller added that the corporation and the government had entered into multiple contracts for the construction of SGR hence orders stopping the exercise will cause them to be in breach leading to penalties which the tax payers will have to take care of.

“The petitioners claim is compensation, all they want is money, there is no need for conservatory orders to be granted, they have a remedy in terms of money,” said Mr Miller.

Mr Miller further argued that 80 per cent of the construction of the SGR from Mombasa to Nairobi had already been completed hence stopping it is unjustified.

China Road and Bridge Corporation (K) Ltd who are constructing the SGR said the orders stopping the construction have been issued on a property acquired by the government and which does not belong to the company.

Through lawyer Wamuti Ndegwa, the contractor said the orders of the petition cannot enforce an award granted to company.

“The effect of the order is giving back the land with expensive installation (to the petitioner), even if the order is given it cannot help the petitioner get his claim,” said Mr Ndegwa.

Mr Ndegwa said the quality of the structures which have been put up continue to deteriorate since they need to be maintained and that materials at the construction site are being stolen.

He added that they are paying millions of shillings for machines which have been hired describing the loss as huge.

EVIDENCE OF DISPUTE

Lawyer Michael Oloo for African Gas Oil Company Ltd said his client is the registered proprietor and still has interest in the land.

“There is no evidence of dispute placed before you or an affidavit (over the land) said Mr Oloo.

Mr Oloo said since the awards for compensation were issued, his clients had written several letters to the respondents without getting any response.

He argued that argued that prior to the acquisition of the land by the government, the company wanted to put a ‘massive’ container freight terminal petitioners land and that there is no reason why the government has refused to pay compensation money.

In the petition, the company is seeking among others an injunction against Kenya Railways and the CRBC from carrying any construction works on the parcel of land until it is compensated in accordance with the law.

The Attorney General and the National Land Commission have also been named as respondents in the suit.

The court extended the interim orders suspending the construction of the SGR until it delivers its ruling on July 22.

Published by NAIROBI NEWS on Jul 8, 2016. (The article first appeared on the Business Daily)

Trader dismisses Karen land documents

Businessman Horatius Da Gama Rose has dismissed documents tabled by a company claiming ownership of the disputed Karen land as forgeries.

In a sworn statement, Rose says it cannot be possible for Telesource.com to have bought the land from John Kamau and obtained the transfer in October 2005.

This is because the seller had died three years earlier. He says there is no evidence that Kamau or Telesource.com paid rent for the land.

Telesource, associated with former NSSF managing trustee Jos Konzolo, alleges that Kamau executed the transfer on October 17, 2005.

However, Rose says the death certificate shows Kamau died on April 27, 2002.

Rose, through his company Muchanga Ltd, is battling with Telesource.com, Jina Enterprises and Habenga Holdings over the land estimated at Sh8 billion. The land led to the suspension and subsequent charging of former CS Charity Ngilu.

When the parties appeared before Justice Lucy Gacheru yesterday, they were given 30 days to respond to the new claims by Rose.

The businessman says he bought the land from Barclays Bank, which was the trustee for Arnold Bradley and the executor of the will. He moved to court in 2014 accusing unknown people of grabbing the 134 acres and planning to subdivide it.

Muchanga Ltd, through lawyer Cecil Miller said the bank transferred the land to it in December 1982 for Sh1.2 million. Rose tabled letters showing how the land was transferred to him.

This article was published by THE STAR newspaper on June 8

Detectives grill former NBK bosses for eight hours for banking malpractices

Four former National Bank of Kenya (NBK) top managers were yesterday questioned by police over claims of banking malpractices.

This came as senators criticised the closure of Chase Bank. Chase Bank’s Group Managing Director Duncan Kabui and Chairman Zafrullah Khan were also quizzed by the detectives for the second time in three days. The managers, who were accompanied by their lawyer Cecil Miller, left the Directorate of Criminal Investigations after nine hours.

The former NBK officials were led by lawyer Paul Muite when they presented themselves before the Directorate of Criminal Investigations as directed by Inspector General of Police Joseph Boinnet.

Sacked NBK Managing Director Munir Ahmed, chief finance officer Chris Kisire, chief credit officer George Jaba, and acting chief finance officer Wycliffe Kivunira spent more than eight hours with the detectives answering questions regarding lending while in office. Former National Bank Managing Director Munir Sheikh Ahmed speaks during the official opening of the Kericho branch.

The bank made a loss of Sh1.2 billion in the last financial year. Police are investigating claims of bad practices that could have contributed to the losses. Sources said they all denied any wrongdoing. Officials said ICT director Mohammed Abdalla and executive director Boniface Biko were away but promised to present themselves later.

Their identification documents, including passports, were confiscated by police. Director of Criminal Investigations (DCI) Ndegwa Muhoro said they were still talking to various parties in the case before they decide on possible charges to be preferred, if any.

“This is a long process that is progressing well. We have opened investigation files and it will take time to know the way forward because there are many other people to talk to,” he said. And the Senate Finance Committee yesterday criticised the “speedy action” by Central Bank of Kenya Governor Patrick Njoroge to shut down the troubled Chase Bank.

The committee said the decisive move, plus the closure in the past of two other banks – Dubai and Imperial Banks – had occasioned more harm to the innocent depositors, as opposed to the institution’s directors who should be punished. Committee Chairman Billow Kerrow, who is also the Mandera senator, said that when a financial institution is going under, the Central Bank should first focus on the interests of depositors, who are always at risk of losing their savings in the event of a closure.

Inasmuch as the bank directors have a responsibility as well the management to ensure safety and custody and always be responsible for the losses, we are concerned that the CBK Governor has acted in a hasty and irrational manner,” said Kerrow.

Nyeri Senator Mutahi Kagwe accused Njoroge of overreacting, saying while directors of the bank should be punished for poor insider-lending regime, it did not necessarily mean that Chase Bank should have been closed.

“The Governor should not be using a Bazooka to kill a fly. He is overreacting. We are wondering whether his action was taken in the best interest of depositors. We know what happens in this country when a bank is closed,” said Kagwe.

Kerrow said the closure of the three banks had led to withholding of over Sh150 billion of depositors’ money, which had a big impact on the stability of the economy. The senators further urged the CBK Governor to probe possible connivance between regulatory officials and Chase Bank management, saying the irregularities cannot have been without the knowledge of some elements in CBK.

“CBK is not a scarecrow in a maize field. It is supposed to provide cushion to depositors,” said Machakos Senator Mutula Kilonzo Jnr.

Kilonzo proposed that while the criminal process against managers and directors responsible for the mess was ongoing, the State should attach their properties to ensure they do not flee. Kilonzo said it was questionable that the Chase Bank mess was not detected earlier, adding that former Governor Andrew Mulei had installed a comprehensive system to flag anomalies.

“Kenyans paid dearly for this system that is supposed to do trouble-shoot in the banking industry. It can only be that some people within CBK are conniving with those keen on looting depositors’ funds and we need to see these elements punished,” he said. Senate Majority Whip Beatrice Elachi questioned how auditors had given banks clean bills of health only for them to go under in a matter of months.

“There has to be a collusion that also ropes in auditors, otherwise how does such a mess happen when auditors had given such a clean bill on the financial institution?” she posed. On Friday, Boinnet issued arrest orders against two Chase Bank managers and six senior managers at the equally troubled National Bank after they all defied an order to surrender themselves to the police.

Mr Boinnet had ordered the arrests, accusing the managers of engaging in unethical conduct, including illegal lending to themselves and to their cronies in disregard of all guidelines. “I have, therefore, ordered the immediate arrest of the following persons, or in lieu, they must present themselves to the Directorate of Criminal Investigations headquarters by 3.30pm today (Friday).”

Zafrullah and Kabui spent the better part of Saturday at DCI headquarters. Chase Bank was placed under receivership last Thursday.

This article was published by the STANDARD on April 12, 2016

Sh8 billion Karen land under dispute has three titles

A court has ruled that the 134 acre farm in Karen area which has been the subject of a sharp ownership court dispute has three title deeds in existence.

However Lady Justice Lucy Nyambura Gacheru said she “cannot rule with certainty who of the three claimants has the genuine title.”

Justice Gacheru said the claimants holding titles for the Sh8 billion land are Muchanga Investments Limited, Telesource Limited and a widow of a former Nairobi Provincial Commissioner the late John Mburu.

TRUE OWNER

She said for the court to determine the true owner of the farmer all the three parties must be given an opportunity to lead evidence to show how they acquired their title deeds.

The judge directed Muchanga Investments Limited, which is being defended by lawyer Cecil Miller and Peter Wena, not to sell or transfer the land to any third party until the case it filed in court is heard and determined.

Mr Miller obtained orders restraining anybody or company from interfering with the parcel of land saying, Muchanga Investments Limited acquired the land legally from Barclays Bank of Kenya Limited in 1983.

“The bank was the executor of a will of the original owner of the land Mr Arnold Bradley,” evidence tendered in court stated.

POLICE GUARD

Justice Gacheru ordered the Officer Commanding Langata Police Division (OCPD) to post officers on the land to “ensure that no activity is carried out in the disputed land.”

In its suit, Muchanga Investments Limited named Habenga Holdings Limited, Jina Enterprise Limited, Telesource Limited, Ministry of Lands & Housing, Director of Physical Planning Ministry of Lands & Housing, Registrar of Titles, Chief Lands Registrar.

Mr John Mugo Kamau applied to be enjoined in the case alongside Ms Carmelina Mburu, wife of the late PC John Mburu.

The judge noted in her ruling that each of the three claimants maintain they are the bonafide owners of the land.

Carmelina Mburu, 81, through lawyer Albert Kuloba told the judge the land belonged to her late husband who had a lease hold period of 999 years.

Telesource Limited, through lawyer Stephen Gikara, said it bought the land from Mr Mburu who alleged he acquired the land in 1978.

Muchanga Investments Limited through its director Horatius Da Gama Rose explained that it bought the land by Barclays bank which was the sole executor of the will of Mr Bradley.

EVIDENCE OF ACQUISITION

After finding that there are three titles in dispute, the judge directed all the parties to file evidence of acquisition.

“This case will be mentioned on June 6, 2016 for further directions,” Justice Gacheru.

Meanwhile she directed the status quo to be maintained and directed police to keep vigil on the land and ensure no body interferes with it.

This article was published by NAIROBI NEWS on March 30, 2016

Court declines to suspend Michael Kamau’s graft case

A magistrate has declined to allow further delay in the hearing of a corruption case facing suspended Transport Cabinet Secretary Michael Kamau.

Lawyers had requested the suspension of the trial to await the outcome of a petition he lodged, alongside his personal assistant, challenging the legality of their prosecution.

The magistrate on Monday instead directed that all parties prepare for the start of the trial in seven days, as “there is no active order as yet stopping the progress of the case.”

Mr Kamau’s lawyer had asked that an adjournment be granted to await the outcome of the petition at the High Court.

In the case, the suspended CS is charged with wilful failure to comply with government financial regulations.

This is in relation to the design of the Kamukuywa-Kaptama-Kapsokwony-Sirisia road, which led to a massive embezzlement of funds by a phantom contractor.

Mr Cecil Miller also made a similar request on behalf of Mr Gilbert Arasa, who was Mr Kamau’s personal assistant and is the fifth suspect in the case.

The lawyer wanted the court to reconvene not later than November 12, when an indication on the ruling on the pending petition may be ready at the High Court.

However, other suspects, through their lawyers, said they were ready for proceedings, though the sixth suspect claimed not to have been given copies of the prosecution’s case to “prepare a proper defence”.

It was on this allegation that Monday’s proceedings were called off and the prosecution directed to supply the documents before the hearing begins.

REQUEST FOR DELAY

A prosecutor said two witnesses were ready to proceed and asked the presiding magistrate, Mr Lawrence Mugambi, to reject the request for a delay.

“It is not proper to speculate on the outcome of the petition before the High Court; we had set a hearing date on the basis that in case the appeal is dismissed all parties should be ready to proceed,” Mr Alloys Kemo said.

The magistrate concurred and reaffirmed the urgency with which the Chief Justice ordered all anti-corruption cases to be heard and dispensed with.

He also said that copies of evidence must equally be provided for defence teams to prepare adequately.

Mr Mugambi further directed that the prosecution supply the necessary documents within seven days and set a mention for November 5 for “confirmation of compliance and fixing of a hearing date”.

In the case, the CS and the other eight suspects, all public servants, are accused of disregarding designs prepared by M/S Engiconsult Limited and preparing their own, which led to the embezzlement of Sh33 million by one M/S Kundan Singh Construction Limited.

The multiple offences facing the suspects include the presentation of false documents and were allegedly committed between November 2007 and March 2008.

This article was published by the DAILY NATION on October 26, 2015

Graft case against CS Kamau for next month

A Nairobi court yesterday ordered the corruption case to proceed against suspended Transport Cabinet Secretary Michael Kamau and seven other government officials.

Kamau faces five charges of abuse of office and irregular use of public funds.

Trial magistrate Lawrence Mugambi issued the order after rejecting an application for adjournment by defence lawyers led by Cecil Miller.

The case had been scheduled for hearing yesterday.

But the defence lawyers said their clients filed a petition in the High Court, which will be heard on November 12.

They wanted the trial stopped pending the outcome of the petition.

Senior assistant Director of Public Prosecutions Alloys Kemboi opposed the application, saying no restraining orders have been obtained by defence.

He said the prosecution is ready.

This article was published by the STAR NEWSPAPER on October 27, 2015

Muchanga Investment solely owns Karen land, says Miller

Muchanga Investment Ltd yesterday maintained it solely owns the Karen land.

Lawyer Cecil Miller said Barclays Bank confirmed in court it transferred in 1983 the title deed for the 134.4 acres to the company, owned by tycoon Horatius Da Gama Rose.

Making submissions before Justice Lucy Nyambura, Miller said the bank’s senior legal officer Waweru Mathenge confirmed records available in the bank identifies Rose as the one they dealt with.

He said Mathenge told the court the bank held the title deed for 10 years when a borrower, Da Gama Rose Investments, was repaying a loan of Sh10.5 million.

The legal officer said in the title deed he did not see any other company except Da Gama Roses’.

During cross examination, Mathenge told Miller there must have been a link between the borrower and the company which has secured the loan.

The hearing continues on October 30.

This article was published by THE STAR newspaper on October 12, 2015