This is an intriguing tale of, as yet, secret “Nairobi transaction” which, according to Justice Morgan of the Chancery Division, Companies Court, in the UK has thrown up a “nuclear mushroom cloud” of litigation.

In a chain of civil cases, involving influential Saudi princes and royalty with Jordanian businessmen, an international cauldron of diplomatic confusion has erupted roping in the USA, UK and Lebanon; whether the Kenyan Government gets involved remains to be seen.

It appears that all the Kenyan law enforcing agencies and even diplomats are totally oblivious of what is transpiring in London.

The Attorney-General, the Deputy Public Prosecutor, the Ethics and Anti-Corruption Commission, the National Police Service through CID or Economic Crimes Unit or Money Laundering Department should be sharpening their pencils, for, in this London case, may lie a genesis of a scam identical to that of Goldenberg or Anglo Leasing!

Two Saudi princes have warned the High Court that relations between the UK and Saudi   Arabia will suffer if what are said to be highly damaging allegations about business deals surface during a London trial, and the media actively entered the dust of conflict wanting to exercise its right to court records.

The allegations are said to be so serious that if published and revealed, oil-rich Kingdom of Saudi Arabia’s relations with the UK and USA may have “adverse effect”. The Saudis have contended that the allegations are untrue, outrageous and scandalous.

The reference to political justifications for suppressing the disputed claims is revealed in a ruling delivered last month by Mr Justice Morgan.

The judgment upholds, in principle, requests by the Guardian and Financial Times newspapers to be given documents detailing the disputed transactions involving Saudi interests in “a Beirut transaction” and “a Nairobi transaction”.

Fear of publicity

How far the legal doctrine of sovereign immunity could extend into the Saudi royal family so as to protect them from being sued in the UK, will be decided in an Appeal court.

The case comes at a time Russian oligarchs, Middle East businessmen and Asian corporations are increasingly turning to London courts to resolve legal disputes.

The claims involving a dispute equivalent to KSh569,500,000 or  US$6.7 million have erupted from a bitter disagreement with a Jordanian businessman, Faisal Almhairat, once the Saudis’ partner in a firm called FI Call Ltd.

The lawyers for the Saudi prince, and others have told the court that the allegations were made in order to put pressure on the Global Torch parties through the fear of publicity, the aim being to cause “reputational damage, embarrassment and distress”.

A solicitor acting for Global Torch told the court, according to the judgment, that “publicity for the Beirut and Nairobi transactions allegation” would result in Prince Abdulaziz and Emad Ayshih, a director of FI Call Ltd, being at risk of “serious personal injury or death from reprisals from citizens of Saudi Arabia or certain organisations”.

Such intimidating tactics from senior Saudis are not unprecedented. In 2006 the Saudis threatened to end counter-terrorist co-operation with the UK unless the Serious Fraud Office dropped its investigation into BAE Systems over the al-Yamamah arms deal. It resulted in the investigation being shelved by UK’s fraud and anti-corruption body by Serious Frauds Office during Tony Blair’s premiership.

The owners of the Guardian and the Financial Times newspapers successfully took the fight to be availed the details of the transactions and to bring them to the public domain.

Judge Morgan’s judgment, which examines the limits of secret justice, reinforces the principle that papers attached to a court case should be available to the media and public.

The court held that documents sought were for proper journalistic reason. “There is likely to be considerable interest in the material contained. There are good reasons why the news media should have available to them the documents which they seek to assist them in preparing a fair and accurate report of hearings which have, or should have, taken place in public.”

In terms of the Saudis’ privacy application, the judge said: “The fact that a hearing in open court may be painful, humiliating and a deterrent either to a party or a witness is not normally a proper basis for departing from the  open justice principle.

Interesting dimensions

“The court hearings in this litigation should take place in open court unless there later emerges some new material which would justify a different approach.”

A “confidential schedule” in custody of the court containing five allegations against Global Torch should therefore be made public, the judge said, if the ruling is “left unreversed by an appellate court”.

If the appeal fails, “the Nairobi Transaction” will have tell-tale and interesting dimensions in Kenya but for the present it is regrettable that the wider details of the allegations cannot be made public. Some of the issues surfacing in the case have not been pursued in Kenyan courts.

Press freedom, freedom of expression, private hearings, right to fair civil trial, right to respect for private and family life, and “unfairly prejudicial conduct” are all elements which are bound to be introduced in Kenya.

The writer is a lawyer.

bowryp@hotmail.com