443-acre farm at stake as President Uhuru Kenyatta's kin lose case

Ngengi Muigai (pictured) and Samuel Kung'u Muigai have lost a 28-year-old court battle over Sh70 million owed to KCB. (PHOTO: FILE/ STANDARD

Two private companies have lost a 28-year-old court battle over Sh70 million owed to Kenya Commercial Bank (KCB).

The Supreme Court dismissed an appeal filed by Benjoh Amalgamated Ltd and its subsidiary, Muiri Coffee Estate.

The dismissal came after a protracted suit, which was characterised by disappearing court files and legal consents.

The two firms had refused to repay the money after a file at the High Court went missing under mysterious circumstances.

The firms had initially obtained restraining orders after KCB threatened to auction their properties.

With the dismissal of their appeal by the Supreme Court, it now means KCB can auction the 443-acre farm in Thika to recover the disputed loan.

The two firms are said to have admitted liability to KCB and promised to pay the loan by July 31, 1992, failing which the bank would be free to sell the land.

Numerous courts

Benjoh Amalgamated Ltd and Muiri Coffee Estate are associated with President Uhuru Kenyatta’s relatives, Ngengi Muigai and Samuel Kung’u Muigai, who are the directors.

On November 7, 2014, the Court of Appeal allowed the two firms to challenge its judgement, which allowed KCB to auction their 433-acre farm in Thika at the Supreme Court, over the disputed loan.

The dispute, which has been handled by numerous courts, had in 2014 been referred by the Court of Appeal to the Supreme Court.

In their ruling, Supreme Court judges Willy Mutunga, Kalpana Rawal, Mohamed Ibrahim, Jackton Ojwang and Njoki Ndung’u noted that asking the court to address the matter of a missing record of the High Court meant asking the court to rule on the legality of the consent made by KCB, Benjoh Amalgamated and Muiri Coffee.

The judges noted that the question was settled as far as back 1998 and it was not conceivable for the Supreme Court to reopen the matter.

“Since the question was first determined with finality on March 10, 1998, rights, obligations and interests have crystallised and they carry all validity, and embody proper and legitimate expectations,” the judges ruled.

They added: “The system of justice that is upheld by the court of law, we will not tamper with such rights and obligations even where some of the parties may feel aggrieved.”

Public importance

The judges said the Court of Appeal’s confirmation of the case as one involving a matter of general public importance and allowing Benjoh Amalgamated and Muiri Coffee to petition the Supreme Court, it did not mean the highest court serves as another layer of the appellate court structure.

KCB lawyer Philip Nyachoti told the Supreme Court Benjoh Amalgamated and Muiri Coffee defaulted in repaying the loan facilities.

In default, Nyachoti said KCB instructed auctioneers to realise the securities it held under the transaction.

But the firms filed a suit at the High Court against KCB’s decision.