Decisions by several judges to acknowledge a contested consent order despite not seeing the actual document are threatening to grind the Supreme Court's operations to a halt.
This follows a petition seeking the removal of four of its officials.
Kenya Cultural Centre Council chairperson Kungu Muigai and former Gatundu MP Ngengi Muigai have sought the removal of 10 senior judges for alleged misconduct in handling a decades-long dispute over a 443-acre land in Juja, Kiambu County.
Mr Kungu, a former pilot with the Kenya Air Force who retired after attaining the rank of captain, and his brother Mr Ngengi lost their 443-acre land following several court cases against KCB Bank and, later, a company that bought the prime property in a 2007 auction.
The loss stemmed from a botched floriculture investment the brothers attempted in 1989, using land parcels in Nyandarua and Kiambu Counties as collateral for a loan from KCB Bank.
Mr Kungu has asked the JSC to summon him to testify, if need be, as he wants the institution to trigger the removal of the 10 judges from office.
Disputes over the land have triggered 25 court cases, which have been handled by over 30 judges in the High Court, Court of Appeal and Supreme Court.
The brothers have filed their petitions through Benjoh Amalgamated, the principal borrower in 1989, and Muiri Coffee Estates, the guarantor that lost the 443-acre land.
The Muigai brothers argue in their petition that at the time of the auction, the land was worth Sh1.3 billion. They say in affidavits that the property is now worth over Sh3 billion.
The buyer only took possession of the land in March, 2024, after most of the cases relating to the property were ruled in favour of KCB and Bidii Kenya Ltd.
The dispute originated from a Sh23 million loan borrowed by Benjoh Amalgamated in 1988 for a floriculture investment under a USAID-backed project.
Benjoh Amalgamated provided two pieces of land in Nyandarua as security, with Mr Kungu’s Muiri Coffee coming in as a guarantor who offered the 443-acre Juja land for additional security.
Benjoh Amalgamated has over the years maintained that KCB sabotaged its plans by refusing to release part of the loan which was intended for the export of already grown flowers.
This, the company held, contributed to the default of the loan.
Benjoh sued KCB to stop a planned auction in 1992. But the court file went missing before KCB had filed its defence.
When the High Court ordered for a reconstruction of the file through documents each party had been served with, KCB presented a contested consent order that allowed it to auction the land if Benjoh did not repay the loan within an agreed period that had lapsed.
The Muigai brothers maintain that KCB filed photocopies of documents okaying the auctions, but which did not indicate how much money was being recovered for the loan.
Benjoh contested the document, unsuccessfully.
KCB opted to ignore Benjoh’s security – the two Nyandarua parcels – and instead trained its sights on the guarantor’s 443-acre land.
Most of the decisions reached by the High Court, Court of Appeal and Supreme Court were on the strength of a consent order in 1992 which indicated that KCB was free to auction the land if Benjoh Amalgamated failed to repay a Sh23 million loan.
Through a petition received by the Judicial Service Commission (JSC)on October 11, 2024, Mr Muigai has now accused the 10 judges of basing their various decisions on a non-existent consent order, which he says aided the alleged unfair loss of his prime property.
The petition risks throwing the Judiciary’s operations into a tailspin, as it seeks the removal of four Supreme Court judges – more than half of the Apex justice delivery institution.
If the petition were to succeed, it would deal a quorum hitch to the Supreme Court which by law requires a minimum of five judges to be considered properly constituted.
Mr Muigai in his documents indicates that the removal petition could be his last chance at getting justice, even as he reveals that the Directorate of Criminal Investigations (DCI) is conducting a probe on alleged bribery related to the cases over the land.
Benjoh and Muiri fault the Supreme Court judges for allegedly affirming the existence of consent judgement entered in on May 4, 1992, without seeing it even after appeal judges Agnes Murgor, Jamila Mohammed and Patrick Kiage ruled that the issue of the non-existent judgement was of great public interest.
Senior Counsel Paul Muite for Benjoh and Muiri had urged judges of the court that courts of law are courts of record and without a record, a party cannot execute any judgment to recover a bank facility.
The Muigai brothers say in their JSC petition that KCB has never availed the statement of account for Benjoh since 1988, which they argue left the verified owed amount a mystery to date.
The Muigai brothers say in their petition that the DCI is investigating forgery allegations related to the contested 1992 consent order and that it plans to prosecute a lawyer who represented KCB then, alongside some of the lender’s officials and directors of Bidii Kenya.
In March, Director of Public Prosecutions Renson Ingonga wrote to DCI Mohamed Amin stating that his office was awaiting the conclusion of a contempt of court application filed by Bidii Kenya in which the firm sought access to the Juja land before he could give direction on the planned prosecutions.
One month later, Mr Ingonga requested for the investigation file to be resubmitted to his office for further directions, which are still pending.
G.K. Meenye, who was listed in the contested documents as the lawyer on record for Benjoh Amalgamated in 1992, has since told the DCI that he never acted for that company at the time.
The Law Society of Kenya has provided records indicating that Mr Meenye did not hold a practising certificate on May 4, 1992, when the contested consent order was entered into.
That statement and the LSK records are part of the evidence that the DCI is relying on in its planned prosecution of several individuals.
Mr Kungu maintains that courts can only act on physical records and in the petition questions how the judges were so categorical that there existed a consent order.
“Petitioners herein plead for an investigation into the conduct of the judges in this matter and their subsequent removal of the judges from office. The petitioners cite the Honorable Judges for gross misconduct for upholding and affirming a non-existent purported Judgement dated May 4, 1992, in High Court Civil Case (HCCC) 1219 of 1992 without any record of the same,” the Muigai brothers say in their petitions.
They claim that part of the DCI investigation is on a businessman who has been accused of facilitating bribery to ensure the alleged relocation of some people to the Mangu and Juja areas.
Benjoh says in the JSC petition that it paid KCB Sh6m in an attempt to liquidate the debt and stated that the outstanding loan was Sh3.4m even though it had not received any statement of accounts.
The firm adds that on March 6, 1996, KCB demanded Sh44.3m as the loan balance, still without a statement of accounts.
An earlier DCI complaint by Benjoh against KCB saw an advocate and KCB official charged with conspiracy to defraud Benjoh Amalgamated and forgery.
The Attorney-General Amos Wako, who was also head of prosecutions at the time, dropped the charges.
The Muigai brothers have in their latest application asked the Court of Appeal to allow them to revive one of the cases they lost before Justice Jonathan Havelock in 2014.
KCB and Bidii asked Justice Havelock to dismiss the suit in 2013 but the judge declined. KCB and Bidii Kenya moved to the Court of Appeal, which ordered that the suit before Justice Havelock be terminated.
Following the termination, Bidii Kenya filed an application before Justice Havelock seeking to evict Mr Muigai.
The application was granted, but Mr Muigai insisted that the suit had already been terminated hence Justice Havelock should not have entertained the eviction application.
Contacted by Nation, JSC declined to discuss the petitions against the judges terming them “confidential.”
Brian Wasuna, Sam Kiplagat and Richard Munguti
