Appeal court bars two judges from conducting Sh2b hotel suit over jurisdiction
The appellate court sitting in Malindi has stopped two High Court judges in Mombasa from hearing a suit involving ownership and control of a multi-billion five star hotel in Watamu over failure to consider their jurisdiction in the matter.
The appellate judges said that Justice P.J. Otieno and Lady Justice Dorah Chepkwony had failed to determine if they had jurisdiction to hear and determine the matter involving ownership of Sh2 billion Temple Point Resort formerly Salama Beach Hotel.
Justices R.N. Nambuye, J. Mohammed and J. Oteino Odek said that the High Court should have first determined the issue of jurisdiction before allowing Temple Point Resort to join as a party in the suit.
“We direct the hearing of the jurisdiction question be heard by any other judge excluding Hon. Justice Dorah Chepkwony and Hon. Justice P.J. Otieno,” said the appellate judges.
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The hotel’s former Italian Regional Director Stephano Uccelli and former Assistant Accountant and Managing Director Issac Rodrot Mwaura are fighting for ownership with a German investor Hans Juergen Langer and his wife Zahra Langer who claim ownership of the hotel.
Justice Chepkwony had on October 19 2018 allowed the Temple Point Resort Limited to join the suit.
However Rodrot through his lawyer Joseph Munyithia said that the Salama Beach Hotel and Temple Point Resort Limited are same entities under the ownership of Langer and therefore cannot be allowed to join the suit as an interested party.
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“The learned judge erred in law in determining the application for joinder before determining the jurisdiction issue, for that reason we set aside in entirety the ruling and order made in October 19 2018,” said the appellate judges.
The judges said that whereas the court is competent to give directions on the manner in which a case is to be conducted and the order of hearing, such direction cannot confer jurisdiction where none exists.
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“Jurisdiction is not conferred by directions or case management given by the court. Jurisdiction is conferred by the constitution, statute and relevant judicial decisions,” read the judgment.
The judges said that the High Court should decide over the issue jurisdiction before determining if the matter had already been heard and determined by other superior courts and if Temple Point Resort can be allowed into the suit as interested party.
“In the memorandum of appeal, the appellant have invited us to make a determination on issue of res judicata and validity of the notice of withdrawal, we decline the invitation. It is the duty of the trial court in the first instance to determine if the court has jurisdiction,” said the appellate judges.
In the main suit, Langer has accused Uccelli and Rodrot of colluding to steal over 40, 000 shares and money from the hotel he acquired legally following a debt owed to him by Salama beach mother company Ventaglio International SA.
The hotel that sits on an 11.10 Acres with an isolated expansive access to the Indian Ocean has been in a constant legal dispute over its ownership since 2010.
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“We oppose the application to have Salama Beach Hotel join the suit as an interested party because they are one and the same entity with Temple Point Resort and they are plaintiffs in another matter,” said Munyithia.
However Salama Beach Hotel lawyer Okoth said that by virtue of the lease, they had an interest to protect.
“The outcome of this suit will actually affect in one way or another, the operation and relationship between Salama Beach Hotel and Temple Point Resort Limited,” said Okoth.
In the suit filed before Justice Chepkwony, Langer accused the two employees of forging over 40, 000 shares and stealing over Sh8.4 million while working for him.
Langer said that by the time he took possession of the Hotel, Uchelli and Rodrot were employees of the hotel with no shares.
"We gained ownership to the hotel back in May 27 2008 following judgment from the Court of Appeal in Milan allowing us to recover the debt from Ventagio International SA the mother company to Salama Beach Hotel that owed my company Accredo AG some colossal amount of money running into billions," said Langer.
He said that the president of Viaggi Del Ventaglio, Bruno Colombo and Mario Scotica Muzi testified before trial Judge Dr. Cantu Rajnoldi Di Franco in Italy that they had nothing to do with servants at Salama Beach Hotel since it had been put under insolvency.
He said that a report from Criminal Investigations Department CID ascertains that his company Accredo AG was offered Salama Beach Hotel by Bruno Colombo after they failed to pay the 825, 000 euros in a matter that was ruled in Italy.
However Ucelli and Rodrot insist that they are the rightful owners of the hotel and that the Court of Appeal had upheld a High Court decision to have the hotel given back to them.
Langer said that in July 14 2015 the High Court in Malindi ordered that the registrar of companies change and include his name and his wife’ as shareholders of Salama Beach Hotel Limited as per a decree dated December 21 2010 by Justice Ibrahim Mohamed.
In a letter presented in court from the registrar of companies as at February 12 2018, Langer and his wife Zahra Langer both own a total of 90, 000 shares amounting to Sh2 million.
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