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