A company is still waiting to recover Sh42.4 million paid to a group of British tourists who were attacked at an elephant camp in Kwale more than two decades ago.
Cosmos Holidays Plc has been in the corridors of justice in the UK and locally, trying to recover the money it compensated the tourists through a mediation process from Dhanjal Investments Ltd, which owns the camp.
The company had been awarded the money by the High Court in Leeds on May 7, 2008, after finding that Dhanjal was liable to indemnify it under the terms of a contract they had entered into in October 1999.
In the deal signed in Mombasa, Dhanjal was to hold 20 rooms and provide Cosmos clients with other amenities, including an overnight stay at the Traveller’s Mwaluganje Elephant Sanctuary Camp in Kwale.
Three appellate judges declined to allow Dhanjal to proceed to the Supreme Court in a bid to allow Cosmos to enjoy the fruits of the judgement.
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Appellate judges Wanjiru Karanja, Mohammed Warsame and Agnes Murgor said the issues the company wanted to raise at the Supreme Court had been address by the Court of Appeal in April 2018, and there is no question of law to be clarified by the Supreme Court.
“In light of the above, we are of the view the matter before the court in the United Kingdom was duly tried and adjudicated, and our Kenyan laws and justice system recognise the enforcement of such judgement albeit after registration. It is also our considered view that litigation must come to an end and the judgement creditor be allowed to enjoy the fruits of its judgement,” reads part of the ruling delivered on May 22.
The judges said the law recognises and provides for instances where enforcement of judgement passed in countries that accord reciprocal treatment to those passed locally are allowed. They pointed out the application was an attempt by the company that operates the camp to have a “fifth bite at the cherry”.
Cosmos’ tribulations started when the tourists, on a 14-day inclusive holiday, at the camp were attacked by a group of armed men who stole their properties.
They sued Cosmos upon returning to the UK on the grounds that the camp had not been properly protected despite a similar attack three weeks earlier. The matter was settled through mediation. Cosmos then moved to the High Court in the UK to recover the money and was awarded Sh42,423,134.
The legal battle came to Kenyan courts after Cosmos filed an application to wind up the company, which Dhanjal opposed on grounds that its contract with Cosmos was not signed in the UK and the tourists were attacked in Kenya.
The High Court agreed with Dhanjal in June 2011 that the judgement could not be enforced because it had not been registered in Kenya.
Cosmos then returned to the High Court on February 24, 2012 to have the decision by the Queen’s Bench Division of the High Court of Justice in Leeds registered.
The document was then registered, but Dhanjal filed another application to set aside the decision pending the hearing and determination of an appeal against the June 2011 decision.