The Court of Appeal has declined to reopen a case involving KCB's auction of a 443-acre coffee farm in Thika owned by President Uhuru Kenyatta's cousin Kungu Muigai, ending a 32-year dispute.
A five-judge bench of the Court of Appeal said it was clear from decided cases that a party is not entitled to seek review of a judgment delivered by the court for the mere purpose of re-hearing and obtaining a fresh decision in the case.
The bench presided over by Justice Asike Makhandia said it was baffling that Benjoh Amalgamated - a company owned by Mr Kungu - was asking the court to reopen the same consent that the apex court had refused to reopen.
“The applicant now wants this Court to believe that it took all those years to discover that it never instructed Mr (Gideon Kaumbuthi) Meenye to represent it. The applicant now wants us to believe all this time it never knew its lawyer on record,” Justices Makhandia, Kathurima M’Inoti, Sankale ole Kantai, Francis Tuiyott and John Mativo said.
Benjoh Amalgamated had sought a review of a judgment delivered by a different bench, arguing that it had obtained new information that was not within its knowledge at the time the court delivered its judgment on December 15, 2017.
Through lawyer Kyalo Mbobu, Benjoh submitted that Mr Meenye, an advocate who allegedly represented the firm in 1992 did not have a practising certificate as at the time of recording the consent that was adopted by the High Court on May 4, 1992. He said the consent order and the proceedings were therefore illegal.
KCB, through lawyer Philip Nyachoti, insisted that it would be an absurdity to reopen the matter when other court orders are already in effect on the basis of the numerous rulings and judgments by several judges.
He said Mr Meenye has always been available since 1992, and the issue of execution of the consent was dealt with by the court in a judgment in March 1998.
Mr Nyachoti submitted that Mr Meenye’s affidavit was not part of the evidence before the trial court, therefore, it cannot be introduced at the appellate stage.
The judges said it was common ground that the consent in question was in existence for 26 years when the appeal was filed on February 16, 2018, and 32 years by the time they were delivering their decision.
The court added that the firm appeared to suggest that Mr Meenye emerged from nowhere and actively represented it in court without its instructions. “Such assertions are in our view the hallmark of dishonesty which should not find its way into the corridors of justice,” the court said.
Bidii Kenya Ltd bought the land, now estimated to be worth more than Sh4 billion in 2007 but it was not until March this year that it managed to evict Muiri Coffee estate, a company co-owned by Mr Kungu and his brother Ngengi on the strength of a 2014 court order, with the assistance of police.
Benjoh and Muiri have filed more than 20 cases among them seeking Sh2.2 billion compensation from KCB for breach of contract.
