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Buzeki walks tight rope over Sh105 million debt

By Everlyne Kwamboka | Published Sun, April 15th 2018 at 00:00, Updated April 14th 2018 at 23:33 GMT +3
Bundotich Zedekiah Kiprop addresses the press in Eldoret.

A high flying politician who shook the heart of Rift Valley with his billions is now fighting off auctioneers to save his business empire.

Bundotich Zedekiah Kiprop alias Buzeki, who mounted aerial and ground campaigns -- using three choppers and top of the range vehicles -- for the Uasin Gishu governor seat, is fighting to save his company’s moveable assets from being auctioned over a Sh105 million debt.

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This is because of a Sh340 million land transaction deal between his company Buzeki Enterprises Ltd (defendant) and that belonging to Landmark Port Conveyors (applicant) - that went sour in 2016.

On Tuesday, the High Court in Nairobi moved the hearing date of the case in which Buzeki is trying to stop auctioneers from attaching the company from April 26 to May 7.

Justice Msagha Mbogholi said the court will not be sitting on that day.

Temporary orders

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Buzeki’s company is hanging on temporary orders that had been extended by High Court judge Jaden Thuranira setting aside warrants and proclamation of attachment by Moran Auctioneers Company that are to lapse on the day the matter will be heard.

Buzeki’s company has been fighting to save its properties from being attached after a judgment was entered against it when it failed to appear in court.

The company, which deals in haulage, claims it was not served with the suit papers to enable it respond to claims made by the applicant.

The politician, who has been in court since early last year, co-owns Buzeki Enterprises Limited with Diana Jepchumba. The transport company, which has lucrative tenders to ferry goods for some international institutions, had a total of 200,000 shares (Buzeki 198,000 and Diana 2,000) as at December 19, 2016.

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In the case, directors of Landmark Port Conveyors entered into a binding sale agreement amounting to Sh340 million on August 17, 2015 with Buzeki Enterprise Limited for the sale of two properties in Mombasa County.

They are a piece of land measuring 1.16 hectares in Section VI Mainland North and another 1.07 hectares in Section VI Changamwe Miritini.

The applicant transferred to Buzeki’s company’s bank account Sh91 million after execution of the agreement and another Sh9 million in cash.

On November 13, 2015, another Sh5 million was paid to the defendant director’s account.

Buzeki was expected to discharge the mortgage accrued on the Mainland North property upon receipt of the deposit and the balance of the purchase price, but this did not happen.

When confronted by the buyer over the mortgage issue, Buzeki asked for a revision of the agreement. The applicant then demanded for a refund of the deposit paid.

“We are also aware that we shall forfeit 10 per cent of the total deposit paid and therefore our claim is for Sh94,500,000 and interest at bank rate from December 8, 2016 till payment in full for both days inclusive,” said Landmark Port Conveyors Director Njenga Peter Kamau in documents seen by Sunday Standard.

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The applicant filed a case in court through Kamunye Gichigi and Company Advocates when Buzeki failed to refund the money. It later filed an application requesting for judgment to be entered against Buzeki Enterprises Ltd when it failed to counter the case in court.

The law firm filed for a decree claim for the refund of Sh94.5 million, interest accruing at commercial bank rate from December 2016 until full payment is made, cost of the suit plus interest as court rates.

Having failed to enter appearance in the case, Justice Mbogholi entered judgment against the politician’s company on May 12, 2017.

For the bill of cost claim, the law firm drew a certificate of cost totaling Sh1,267,145. The sum came as a result of instruction fee for the claim of Sh94.5 million and Sh1,595,000 calculated at 75 per cent, filing charges Sh70,895 (70,445 plaint, Sh125 list of documents and another claim of Sh325).

The court’s deputy registrar certified the certificate of cost for the law firm on June 5, 2017.

In June 2017, the High Court deputy registrar’s office issued an order commanding Moran Auctioneers to sell Buzeki’s company’s properties by auction in execution of the judgment. The order allowed the auctioneer to sell the debtor’s property to realise the money.

However, Buzeki’s advocate Pennynah Samba moved to court on June 12, 2017 on the grounds that Landmark Port Conveyors obtained orders without her client being heard.

She claimed her client had not been served with any suit paper regarding the debt issue and that it is aware of the abortive convergence and is eager to defend itself.

She said her client would suffer irreparably if the judgment is executed. Judge Mbogholi certified the matter as urgent and suspended execution of his judgment for 21 days.

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When the days lapsed, the company moved to court in July 2017 to have the order on execution extended because the date set for the hearing coincided with the judges’ colloquium. Judge Jaden Thuranira extended the orders for 45 days (June 12 to July 4, 2017).

On  November 30, 2017 Justice Mbogholi ordered that the debt principal sum be varied to Sh105 million and be paid by February 28 this year.

It was also recorded that the interest be calculated at bank rates on Sh95 million and the matter be mentioned on March 7 for further recording of consent.

The Sh105 million was obtained by the applicant via a bank facility. The interest alone was staggering at Sh35 million by last month.

Accumulated interest

However, on March 13, the company moved back to court to apply for a stay of the order, including warrants/proclamation of attachment dated March 15 by the auctioneer.

In an affidavit filed by Buzeki Enterprise Manager Dennis Wanyonyi, the company said it entered into the consent without prejudice.

“In good faith and without prejudice, the company entered into consent on December 31, 2017 in an attempt to settle the suit in light of some expected credit facilities and to salvage its long standing business relationship with the plaintiff (Landmark),” he stated.

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He revealed that credit facilities have delayed and it has only been able to honour in payment of cost to the plaintiff’s lawyer in partial and compliance of the subject consent.

Following the inability to pay, the applicant had obtained against Buzeki’s company a proclamation of attachment in the execution of the judgment.

The company told the court that if the temporary orders are not issued, its contracts of carriage shall be compromised.

Justice Thuranira extended the order again for a period of 30 days from March 27.

The matter will be heard on May 7.

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