Uhuru's kin make 15th attempt to reclaim Sh3 billion land auctioned by KCB

 Uhuru Kenyatta’s cousin Kung’u Muigai. [File, Standard]

Former President Uhuru Kenyatta’s cousins, Kung’u Muigai and Ngengi Muigai, are not about to let go of a 443-acre piece of land they have been fighting to salvage for years.

On Monday, Kung’u made a fresh bid to take the land, which was used as security for a loan from KCB 32 years ago.

It is now the 15th round the two brothers have made in a bid to salvage the farm in Kiambu.

In his argument before the Court of Appeal, Kung’u is asking the court to review its judgement delivered in 2017.

His lawyer Kyalo Mbobu told Justices Asike Makhandia, Francis Tuiyott, Kathurima M’inoti and John Mativo that his client came to learn that his then-lawyer Gideon Meenye did not sign consent for the sale of land  on behalf of Benjoh Amalgamated Enterprise on May 4, 1992.

According to him, the Court of Appeal sealed the fate of Kung’u by overturning High Court judge Joyce Khaminwa’s judgement requiring KCB to fully disclose information about the account.

Mbobu said Meenye swore an affidavit indicating that he was not hired by Kung’u and he did not appear in the case as he was not representing Benjo.

Kung’u lamented that his land was auctioned at Sh70 million to recover the loan yet the same property was valued at Sh3 billion.

He said his quest to have information on how the loan account was operated had hit a dead end.

Mbobu said his client wants the court to right a wrong. He said there is no record from the High Court indicating there was consent for the sale.

“It is a travesty of justice to allow a judgment of this court to stand if there is no record. Why has it not been produced?” posed the lawyer. 

According to him, the then High Court judge Erastus Githinji issued orders on the consent while his client was aware that it did not exist.

Asked by justices Kantai, Kathurima and Makhandia why it took more than 20 years to raise Meenye’s issue, Mbobu said it was in the interest of justice for the court to re-open the case even if the discovery was late.

The onslaught by Kung’u targeted the judgment by justices Roselyn Nambuye, Asike Makhandia and Kathurima M’inoti dated December 15, 2017.

High Court judge Freda Mugambi last ordered Kiambu County Police Commander Michael Muchiri to assist Bidii Kenya Ltd in evicting Uhuru’s cousins from the farm within seven days.

 Uhuru Kenyatta’s cousin Ngengi Muigai. [Jenipher Wachie, Standard] 

Bidii bought the property in 2007 in an auction but has never gained access to the same 17 years after.

KCB lawyers Phillip Nyachoti and Issa Mansur urged the five judges to dismiss the application.

Nyachoti argued that Kung’u had improperly invoked the court’s powers as he had not identified either a clerical or mathematical issue in the 2017 judgment to review or correct.

At the same time, he argued that although Kung’u claims that the land is worth Sh3 billion, it could not be the same value when KCB got a right to auction the property. 

He asserted that the case was an abuse of the court process as the Supreme Court had clearly issued a judgment that the consent was valid. 

“They do not explain why it took all those years for them to file an application on the consent. The application before you is incompetent, lacks merit and therefore should be dismissed with costs,” said Nyachoti. 

Mansur, on the other hand, said the first judgment was delivered in 1998. According to him, the second judgment was delivered in 2017. 

Mansur said there was a separate case filed before Justice Isaac Lenaola (now a Supreme Court judge) in 1999. According to the lawyer, Kung’u should have raised Meenye’s issue then. 

According to the lawyer, when Kung’u filed his appeal before justices Makhandia, M’inoti and Nambuye, he did not raise Meenye’s issue.

In the judgement, justices Nambuye, Makhandia and M’inoti unanimously agreed that KCB had a right to sell the property and that the suits against it were meant to address the same issue which had been settled by the court.

“Benjoh cannot therefore argue that KCB exercised its right of sale over the wrong property. The said property had been charged to secure the loan and was sold upon default,” the judges ruled.

Kung’u, through his firm Benjoh, has pursued almost all possible legal avenues and has employed tremendous legal ingenuity and sophistry with his cases against the lender being heard even by the Supreme Court.

Back in 1988, the United States of America International Development (USAID) offered funds by way of loans to Kenyans under the Rural Projects Enterprise Programme to be administered by KCB, among other banks.

Benjoh applied for a Sh18.6 million loan to start a flower export business on April 12, 1989.

Following a feasibility study, KCB recommended the project and granted Benjoh the loan facility secured by 443-acre land. The guarantor of the loan was Muiru Coffee Limited also owned by Kung’u.

Benjo defaulted in the repayment of the loan, which prompted the bank to order for auction of the contested property at Sh13.1 million.

On May 4, 1992, the lender agreed to halt the auction as Benjoh admitted its indebtedness and undertook to repay the loan in three months.

Kung’u Muigai is asking the court to review its judgement delivered in 2017. [iStockphoto]

It, however, did not honour its end of the bargain, prompting KCB to seek auctioning of the land on January 23, 1993. Benjoh went back to court and stopped the auction.

Undeterred, the lender again scheduled another auction on June 26, 1996, but Muiru this time filed another suit against Benjoh and KCB but the case was dismissed based on belief that the land had already been sold.

But another auction was set in 1997 and again Benjoh rushed to court a day before the auction and obtained orders blocking it.

It also revived the initial case filed in 1992 which had been settled through consent that KCB would not sell the land to allow the firm to settle its debt.

Benjoh wanted the court to set aside the consent orders and at the same time order KCB to release the title as its records did not allegedly show any debt. It lost the case.

The battle between the firm and KCB led to two constitutional cases in which Benjoh complained that its loan account had been fraudulently operated.

It sought to compel the Director of Criminal investigations to institute investigations.

In the second case, Muiru complained that the auction was against its right to property. It asked the court to declare the auction unconstitutional and order that the title should be returned.

Despite all the legal battles, KCB eventually on September 19, 2007, sold the property to Bidii Limited for Sh70 million.

Benjo and Muiri filed yet another suit against the lender and the new owner in a bid to nullify the sale.

After a year of legal fights, the case was again dismissed but the judge ordered KCB should furnish Benjoh with the statements showing how the debt had accrued in order to bring the legal battles to an end.

That did not happen.

Loan statements

Benjoh went again to court still questioning the advanced loan and statements although they had been raised in the previous suits.

In this suit, the firm sought a declaration that KCB breached the contract and further prayed for Sh2.2 billion as damages.

KCB asked the court to dismiss the case but Benjoh filed a counter-suit seeking to strike out the defence.

The Court of Appeal subsequently dismissed the counter-claim as the firm did not prove that it had served KCB with the court papers.

After a plethora of suits in court in a bid to salvage the land worth Sh3 billion, Benjo walked away with nothing in its hands.

The five judges will deliver their ruling on June 21, 2024.

In the meantime, High Court judge David Majanja has barred the police from arresting KCB officials in a separate case by Ngengi.