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Nairobi City lost millions after Chebukati firm failed to file defence in land suit

By Nzau Musau | December 31st 2016 at 10:03:22 GMT +0300

Mr. Wafula Chebukati

President Uhuru Kenyatta's top nominee for the electoral commission chairman spectated over a multimillion-shilling public interest case he was supposed to defend until it was lost.

Details emerging in the wake of Wafula Wanyonyi Chebukati's nomination show that his law firm was sucked into a dispute on the ownership of the Westlands market.

The firm, Cootow & Associates was officially presented as the advocates for the Nairobi City County government in the case between City Hall and Salima Enterprises, but the firm did not defend the suit, leading the county to lose the case. Consequently, the plaintiff sought a Sh325 million compensation.

In the case, Salima, the registered owners of a plot in Westlands, attempted to sell its property to the Nairobi County Council in 2010, but the sale fell through. In June 2013, the Nairobi county government started developing the property and chased away the registered owner.

Salima moved to court claiming rent of Sh200,000 per month and Sh325 million for dispossession of property.

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"Upon service of the Plaint to the Defendant, the Defendant entered appearance but failed to file a defence to the Plaint," court documents say.

Kennedy Mugo, a process server, swore an affidavit on December 20, 2013 avowing that he had served Cootow & Associates and specifically "a Mr Wanyonyi Advocate".

Time elapsed before defence was filed and judgement was swiftly delivered against Nairobi county. In her judgement, Justice Mary Gitumbi noted that "this suit is undefended therefore the Plaintiff's evidence remains un-controverted".

Relying on certificate of title produced by the plaintiff and a sale transaction between the county and the plaintiff, the judge granted the orders sought on July 4, 2014. Soon afterwards, the county government moved back to court seeking stay orders and justifying its failure to defend the suit.

In its application, the county claimed that Cootow failed to defend the suit because letters from the law firm seeking instructions were sat on by a single legal affairs department employee by the name Abwao Erick Odhiambo.

The county said it had initiated internal investigations with view to disciplining "any person found to have deliberately concealed the information". It claimed to have strong documentary evidence to support its case.

"He stated that in view of the foregoing, the law firm did not have the relevant information and materials to enable them to defend this suit," court documents say.

Judge Gitumbi did not buy the argument. Instead, she expressed her disappointment at the failure to defend the suit "bearing in mind the amounts claimed by the Plaintiff, which would ultimately be paid from taxpayers' money if the Plaintiff was successful."

She also could not reconcile the fact the defendant failed to defend the case, despite being represented in court "during every single court appearance including the hearing".

"Defendant remained a spectator in this suit," said the judge.

She promptly dismissed the matter on June 12, 2015. Salima went to court again seeking enforcement of the original judgement and claiming the county had refused to pay up. Constructions had also continued.

Arguing before Justice George Odunga, the county attempted to claim that the parcel had been illegally allotted and title illegally issued. It claimed the land was always earmarked for public use and there is no way it could have been transferred.

Odunga agreed with Salima and dismissed the county. He compelled the county to immediately pay the sum of Sh325 million, profits of Sh200,000 per month from June 2013 until payment is full, legal costs of Sh6.7 million plus accrued interests of 12 percent from July 4, 2014 until payment in full.

It is not clear whether the county has since paid up, whether Chebukati's law firm was paid for the un-rendered legal services and whether the law firm made alternative efforts to get instructions from the county other than through letters.

Connie Maina, the nominee for IEBC membership position, could also face a plethora of issues regarding her past in the National Museums of Kenya. Sources say a matter involving her trusteeship at an endowment fund has lingered on for years without clarity.

Both matters involving Chebukati and Maina did not come up before the panel which recruited them.

IEBC Chebukati president uhuru kenyatta
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