By Evelyn Kwamboka
The High Court has stopped the police from investigating two Kenya Commercial Bank directors over Sh800 million properties.
Justice David Majanja issued the orders against Police Commissioner Mathew Iteere and CID Director Ndegwa Muhoro following a successful case that was argued by the bank on behalf of its directors- Mr David Malakwen and Wilfred Sang.
The police had ordered the directors to appear before the CID headquarters to record statements over issues in dispute between the bank, Benjoh Amalgamated Limited and Muiru Coffee Estates Limited.
In the case, the bank’s lawyer Philip Nyachoti had told the court police were out to investigate issues that have been determined by the High Court and Court of Appeal in more than 18 cases and in so far as any pending cases are concerned, the matters are sub judice.
"As such, the said requisitions are therefore intended to frustrate, embarrass, intimidate, unfairly and illegally acquire evidence and/ or information on the said dispute in favour of the said company, so as to gain unfair advantage over KCB in the said cases," he told the court.
He said the police move is further intended to prefer criminal cases against the two bank officials, adding that his client’s employees are now reasonably apprehensive that their fundamental rights as enshrined in the constitution are threatened and actually infringed.
The officials were summoned to appear before the CID.
In his ruling the judge said if a criminal case against one of the parties in the matter proceeds, the directors and the bank will be called to answer to matters that have been settled by courts of law in disputes between them and complainants.
The judge pointed out that subjecting KCB officers to an inquiry by the police outside the confines of the case where an application for cross examination of the CEO Martin Oduor Otieno has been made and whose cross examination may be expected, is an interference with the fair determination of the pending claims in court.
The issue on the land parcels situated in Nyandarua and Kiambu started in April 1989 when the bank granted Benjoh Amalgamated banking accommodation and financial facilities, secured by legal charges over all the three pieces of land.
The said company allegedly defaulted in the repayment of the banking accommodation and facilities, forcing the bank to instruct its lawyers to demand and recover the amount from the company and the guarantor-Muiri Coffee Estate Limited.
The lawyers caused statutory demand notices to be served on the company and guarantor respectively.
Nyachoti stated in the suit papers that when the company failed to pay the money, the bank instructed its lawyers to proceed with the realization.
When a firm of auctioneers instructed by the lawyers put up an advertisement for the sale of the two properties, the company and guarantor moved to court to stop the same.
In respect of the loan account, Benjoh Amalgamated Limited challenged its statutory right over the securities created.
The High Court and Court of Appeal, Nyachoti said ruled in favour of his client, adding that other cases are still pending.
"The said company is making efforts through the police to illegally obtain information or evidence on matters pending before the High Court and the Court of Appeal with the aim of prejudicing the bank’s respective defences and positions taken in the said cases," he added.
Nyachoti claimed the police wanted to detain the bank officials, adding the two have never written any documents in respect of the dispute between the company and the bank.
