A cement manufacturer wants the High Court to set aside an order suspending a decision to charge three businessmen for fraud over land land located in Mavoko, Machakos County.
Mombasa Cement Limited says an intended appeal by Bharat Ramji, Harish Ramji and Ashvin Ramji against a ruling that dismissed their application to quash summons by police, is not arguable.
Through its manager Evans Muigai, the cement manufacturer argues that the orders sought by the three businessmen are tantamount to a backdoor attempt to circumvent the decision of the court that dismissed their case.
“In any event, the present application is an abuse of the process of the court as the applicants have filed a similar application before the Court of Appeal,” states Mr Muigai in his affidavit.
In their dismissed application, Bharat, Harish and Ashvin had also sought to prohibit the police and the prosecution from initiating any criminal proceedings against them.
In his affidavit, Mr Muigai also states that there is incontrovertible evidence that transfer of the land was forged to obtain the title to the property.
“It is apparent that the applicants have and continue to abuse court process in order to delay and frustrate criminal proceedings,” he said.
Bharat, Harish and Ashvin, however, argue that their intended appeal raises arguable points of law and that the court has jurisdiction to suspend the proceedings pending the hearing and determination of their intended appeal at the Appellate Court.
“The applicants are apprehensive that during the pendency of the appeal, they will be subjected to criminal prosecution contrary to their right to fair administrative action and fair hearing which will occasion a miscarriage of justice.”
The cement manufacturers and the three businessmen are embroiled in a row over the ownership of a million shilling parcel of land in Movoko.
The Environment and Land Court (ELC) had in 2019 ruled that the land, which was once owned by the National Social Security Fund, belonged to Mombasa Cement before Messrs Bharat, Harish, and Ashvin appealed and the Court of Appeal ruled in their favour.
Mombasa Cement has, however, applied to the Court of Appeal and seeks to introduce additional evidence following the hearing of another of its applications to be allowed to appeal to the Supreme Court against the ELC decision.
It argues that fresh evidence has emerged showing that there was no clerical error as was speculated by the Court of Appeal.
“The fresh evidence was not available to the applicant (Mombasa Cement Ltd) either at the time the appeal was heard,” says the company.
Mombasa Cement argues in its suit documents filed at the Court of Appeal that the fresh evidence is important and confirms the fraud being perpetrated by the accused about the land, LR No 11895/50.
“The effect is that not only is there likelihood of a gross miscarriage of justice, but also that it would be morally reprehensible and not in the wider interests of the public that a clearly fraudulent transaction is allowed to stand,” the company argues.
