We gave our best on Anglo Leasing, says deputy solicitor as LSK digs in

Kenya: Deputy Solicitor General Muthoni Kimani says Kenya was prepared to defend the suit in London using its best available defence but opted not to litigate after mediation.

In a response to a case filed by the Law Society of Kenya (LSK), Ms Kimani defended Attorney General Githu Muigai over allegations he did not do much to defend the case.

Muthoni, who was replying to the case filed by LSK to bar the Government from paying Sh1.4 billion to Anglo-Leasing architect Anura Pereira, said since the state was in arbitration with Universal Satspace team, the argument presented before the judge was that the Republic would not continue with the process of litigation as it would amount to an abuse of court process.

“The applicants are trying to portray the behaviour of the AG as being improper and irregular. The proceedings in the High Court in London were brought when the first and second respondents had not concluded administrative issues to finalise the agreement reached with universal Satspace in the mediation,” said Muthoni.

On Monday, the Government wired the money to an account in London.

In her affidavit before Justice David Majanja, the Deputy Solicitor General said the decision to proceed to mediation was done in accordance with the civil procedure rules of the High Court of England and Wales.

All this she says was with the full approval of Messe Edwin Coe and Company advocates, the solicitors and John Wachira who proposed Geoff Daniels as the mediator.

However, Geoff is said to have not taken up the role as he was not available.

Saved tax payer

“Mediation as a form of alternate dispute resolution is common in the United Kingdom and achieves the purposes of reducing legal and other professional costs for the parties,” the affidavit reads.

According to Muthoni, the Government proposed William Wood who had been recommended by the Price WaterhouseCoopers (PWC) after confirming his qualifications as a mediator. She blamed Messrs  Wambugu and Company advocates for the delay in proceeding with the case accusing them of reluctance to provide full details of services rendered to them by Attorney General and lack of communication with Edwin Core who insisted communicating through the same firm.

The firm is alleged to have asked for  Sh17 million and Sh5 million for Edwin Coe which was contested by the AG.

Muthoni pointed out that after several meetings between the Universal Satspace team and the state’s consultants, it emerged that the equipment had been supplied under the Space net contract and that Universal Satspace had provided networking and satellite bandwidth to the postal Corporation.

 Moreover, she said the Postal Corporation system was fully operational in 2004 when it was launched by the late John Michuki who was then the Information and transport Minister. Both parties agreed to settle on what fair value of the services given by Satspace. They also looked at the potential cost of litigation and the outcome of the same. Lastly they focused on the settlement of the case.

She said with both parties agreeing on William wood, mediations started in Nairobi on 19th and 20th February 2013 with PWC led by Jack Ward who is an expert on Bandwidth and Andrew Middleton from United Kingdom and the technical advisor on the financial aspects and the fair value of the cost of the Bandwidth being present.

She added that the mediation team informed Wood about corruption issues in the procurement process but he reminded them of the Swiss Court Ruling that the evidence was insufficient.

They went ahead and protracted negotiations in which the price of the bandwidth was reduced to 4.3 million dollars but finally agreed on 7.6 million dollars as a reasonable price. In 2012, Satspace is alleged to have demanded more than 20 million dollars with an offer to settle at 18 million dollars.

The mediation, Muthoni says saved the taxpayer more than Sh1 billion and that it was done in presence of PWC and the National Treasury officials.