Nairobi County has been spared the agony of having its seven bank accounts attached to recover a debt of over Sh1 billion owed to a private firm whose land was forcibly acquired for the construction of a modern market in Westlands.
High Court judge John Chigiti dismissed an application by Salima Enterprises Limited, seeking to attach the county government’s seven bank accounts at Co-operative and Equity banks.
Rejecting the application, the judge stated that Salima did not provide the court with evidence to demonstrate the efforts made towards effecting warrants for the arrest of Nairobi Governor Johnson Sakaja as well as the chief accounting officer at City Hall, or how the firm has been frustrated in pursuit of its payment.
Justice Chigiti noted that the company could have at least furnished the court with an affidavit of attempted service to buttress its case.
“None was presented to the court by the applicant (Salima). Therefore, the court is not satisfied that there were attempts to execute the warrants of arrest as alleged,” said Justice Chigiti.
The judge also discounted arguments by the firm that numerous efforts to arrest the Governor or County Executive Committee (CEC) for Finance were unsuccessful, or that attempts to call upon the Inspector-General of Police Douglas Kanja to aid in the arrest were unfruitful.
“There is no evidence by Salima to demonstrate or to prove the so-called extreme frustration in arresting even one of the judgment debtors’ officers,” noted the judge.
In support of the application, Salima Enterprises Director Hanif Gulam said a judgment was entered in favour of his firm in June 2016.
However, efforts by his firm to execute the decree had largely been unsuccessful due to immense frustrations by the county government, he argued.
Mr Gulam informed the court that in compromise of a previous application to attach the accounts, the county government entered into a consent on January 9, 2018, and agreed to pay Sh600 million within 21 days, but failed to honour the promise.
He then obtained warrants of arrests against the governor, chief accounting officer and the Finance and Economic Planning executive, “but his efforts have been extremely frustrated in any attempt to arrest either of them.”
Salima Enterprise sued Nairobi County after it was evicted from the land to pave the way for the construction of a modern indoor market. The firm said it used the land as a car park, charging the vehicle owners Sh200 daily. At least Sh200,000 was being collected every month.
The company urged the court to consider compensation from the time the county government unlawfully took possession of the property.
Mr Gulam said the firm acquired the property in 2009, and that the county government had in January 2010 expressed interest in purchasing the property. But when the sale collapsed, it started the process of forceful acquisition.
To prove it was the legitimate owner of the disputed property, Salima tabled in court its original title deed with a lease agreement of August 1, 1995, between the defunct City Council of Nairobi and itself.
The court concurred with the firm’s submissions that there were negotiations between the parties for the county to buy the property.
According to the court, a letter of January 27, 2010, from the county indicating it could not conclude the sale process as they were still in consultation, was reasonable proof that City Hall was aware that the property belonged to a private company.
The judge found that after the county withdrew its bid, it forcibly acquired the property without compensating the owners.
To determine the value of the property, the court relied on the valuation report prepared by Mr Kimani Mkunga of Transcountry Valuers who put the figure of the land at Sh325 million.
