A new court battle between real estate firm Cytonn Investments Management PLC and Capital Markets Authority (CMA) is brewing over a report prepared last year over the firm’s licence.
In papers filed before High Court judge Hedwig Ong’undi, the investor accuses CMA of failing to release the document despite allegedly having damning information against the Edwin Dande-led company.
Its lawyer Lilian Maina told the judge that CMA had never responded to a demand letter written on July 22, 2022.
“The information so demanded implicates the petitioner adversely, who continues to suffer irreparable reputational injury. The refusal by the first respondent (CMA) to furnish the petitioner with the demanded information undermines the petitioner’s constitutional right to have incorrect, untrue, and or misleading information corrected or deleted,” said Ms Maina.
She said CMA’s conclusion that Cytonn Investments Management PLC was not licensed for funds management and investment advisory services had continued to hurt the firm.
Cytonn has sued CMA CEO Wycliffe Shamiah and the Attorney General.
The firm said it learnt about its status through a press release by CMA on April 20, 2020, and June 17, 2021. At the same time, Cytonn alleges that there is a separate report to the departmental committee on finance, planning, and trade.
All these, it argued, were prepared without giving it a chance to rebut the allegations.
“The blatant refusal by the first and second respondents (CMA and Shamiah) to furnish the petitioner with a copy of the inquiries and giving the petitioner a chance to defend itself has the purpose and effect of violating the petitioner’s right under Articles 35 (1) (b) and 47 of the Constitution.
"The first respondent’s assertion that the licensing status of Cytonn Investments Management PLC is in question has continued to occasion irreparable damage to the petitioner,” Cytonn argues.
At the same time, Dande has filed a separate case against CMA.
He claims that he was not heard before the authority gave its verdict.
Chance to respond
Dande states: “Failure by the first respondent to grant the petitioner a chance to respond to the allegations in the report, before presenting it to Parliament and the public, has the unconstitutional purpose and effect of violating the petitioner’s right to fair administrative action pursuant to Article 47 of the Constitution.”
In his affidavit, he says CMA has denied the firm a right to fair administrative action and access to information.
He wants the court to find that failure to supply the report to him or require to respond to it before presenting it to Parliament or sending the press release is a breach of the company’s rights.
At the same time, he is also seeking orders to force CMA to release the report immediately and offer a public apology in the event the court finds the information is erroneous and misleading.
Justice Ong'undi ordered that the separate cases be mentioned on February 28 before Justice Mugure Thande.
"This matter is clearly related to and all the parties are the same. Counsel for the petitioner is also the one appearing," said the judge.