UK firm’s bid to drag Triton scandal to Supreme Court flops
By Moses Michira | July 6th 2016
A UK financier has been barred from dragging the Triton Scandal to the Supreme Court, marking the end of a 7-year court battle.
London-based Glencore Energy which lost about Sh4 billion to scandal architect Yagnesh Devani, had petitioned the Court of Appeal to allow its case to be heard and determined by the highest court in Kenya.
But the three-judge bench of the Court of Appeal ruled that the matter at hand did not have wider public interest to merit hearing by the Supreme Court.
“The points of law formulated are not substantial and only affect the rights of parties to the dispute and not the rights of the larger business community,” the judges ruled on June 17, effectively crashing any hopes of further litigation.
And with that decision taken, Glencore Energy had failed to satisfy the threshold for certification – the legal term used to refer to confirmation of characteristics of a petition befitting the indulgence of the Supreme Court.
Kenya Pipeline was the defendant in the suit where it was accused of irregularly releasing oil products imported by Triton but financed by Glencore. The financier had hoped the Supreme Court would find KPC liable for the losses after fugitive Devani- who had received payments for the sold products, fled the country before settling Glencore’s debts.
KPC had been saved from the claims in previous rulings, including that of the Court of Appeal which had ruled that Glencore partly to blame for the loss.
“No evidence of any kind was placed before the trial court to show that the title even passed to Triton. Indeed, all the documents show that...the sale was directly from the respondent to Total Kenya,” the earlier ruling reads.
Glencore Energy had in essence been the importer of the oil commodities and not the financier, the judges ruled, to find that the firm was actually illegally operating in Kenya as a marketer but used Triton as a “front, cover and cloak”. The judges found Glencore Energy to have committed a ‘fragrant illegality’ in importing the commodities without necessary permits and that illegality defeats all its claims in its petition.
In finding KPC to have been guilty, however, would mean a significant loss to the general public as the entity is 100 per cent government owned.
The High Court had ruled in Glencore Energy’s favour before the parastatal appealed the ruling that yielded its first win in March of last year. Mr Devani who fled Kenya in 2009 has applied for asylum in the UK to shield him from prosecution in Kenya where he is accused of fraudulently drawing oil products worth Sh7.6 billion – which according to the Court of Appeal belonged to Glencore Energy.
He is currently fighting extradition requests made by Kenya, where another family member is under investigation for dodgy transactions relating to the collapsed Imperial Bank.
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