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|Case Number:||Petition 625 of 2009|
|Parties:||MWANGI STEPHEN MUREITHI v DANIEL TOROITICH ARAP MOI|
|Date Delivered:||06 Apr 2011|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Jeanne Wanjiku Gacheche|
|Citation:||MWANGI STEPHEN MUREITHI v DANIEL TOROITICH ARAP MOI  eKLR|
Mr. Mr. Paul Mwangi for the Petitioner
Mr. Ochieng Oduol for the Respondnt
Mr. Juma Kiplenge for the Interested party.
Mr. Mr. Paul Mwangi for the Petitioner
Mr. Ochieng Oduol for the Respondnt
Mr. Juma Kiplenge for the Interested party.
Constitutional Law-Fundamental Freedoms under the Constitution-allegation of violation of one's Fundamental Freedoms under the Constitution by the respondent who was the then Head of State-whether the Head of State can be personally liable for breach of one's Fundamental Freedoms arising from detention of the claimant , a senior Government official, allegedly due to desire by officials of the State to preserve peace.
Constitutional Law-Fundamental Rights-application of Fundamental Rights-whether Fundamental Rights apply vertically or horizontally-need forrcourts to determine each individual case on its own merit.
Constitutional Law-Limitation period-limitation period in constitutional matters-courts to decide on issues of limitation in constitutional matters on case to case basis
Constitutional Law-constitutional petition-petitioner alleging that the respondent, a Head of State detained him to achieve ulterior motive of a commercial nature-liability attaching to public officers for illegal acts which they commit while allegedly acting under the ostensible authority of the law.
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
PETITION NO. 625 OF 2009
IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL HIGH COURT PRACTICE RULES AND PROCEDURES 2006.
The petitioner claims that sometimes in the year 1982, the respondent while using his powers as the President of the Republic of Kenya, without any lawful cause and excuse, ordered and caused his detention without trial for the purpose of illegally and unconstitutionally depriving the petitioner of his rights to the said companies and the subject properties. He thus avers that the reasons for his detention were personal to the respondent and meant to achieve ulterior commercial advantages for the respondent and that in detaining him without trial, the respondent acted in abuse of office as President of the Republic of Kenya; that it was during the time of his detention and thereafter, that the respondent caused to be sold and ravaged his interests in the aforementioned companies and the subject properties without accounting for the same to him; that he has refused and continues to refuse to give the petitioner an account of his dealings in the said companies and the subject properties; that he has prevented him from accessing any information whenever he sought an account, and that a result of the aforesaid acts he has not only suffered loss, but that the respondent has trampled upon his fundamental rights as enshrined in sections 72 and 75 of the Constitution.
This petition thus comprises of various paragraphs and is supported by the petitioner’s affidavit. The petitioner, who was represented by Mr. Paul Mwangi, also filed submissions on 11/5/2010. He feels that the aforementioned acts and the consequences arising there from negate his Constitutional rights and values as enshrined in Chapter V of the Constitution under which he is entitled to protection. He therefore prays for the following declarations:
He also prays for compensation and for the costs of this suit.
Sections 72 and 75 of the Constitution, which he relies on, stipulate that:
(a) in execution of the sentence or order of a court, whether established for Kenya or some other country, in respect of a criminal offense of which he has been convicted;
(b) in execution of the order of the High Court or the Court of Appeal punishing him for contempt of that court or of another court or tribunal;
(d) for the purpose of bringing him before a court in execution of the order of a court;
(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offense under the law of Kenya;
(f) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;
(g) for the purpose of preventing the spread of an infectious or contagious disease;
(i) for the purpose of preventing the unlawful entry of that person into Kenya, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Kenya or for the purpose of restricting that person while he is being conveyed through Kenya in the course of his extradition or removal as a convicted prisoner from one country to another; or
(j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Kenya or prohibiting him from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during a visit that he is permitted to make to a part of Kenya in which, in consequence of the order, his presence would otherwise be unlawful.
(2) A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.
(3) A person who is arrested or detained -
(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.
(4) Where a person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further held in custody in connexion with those proceedings or that offence save upon the order of a court.
(5) If a person arrested or detained as mentioned in subsection (3) (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
(6) A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that other person”.
75. “(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied -
(a) the taking of possession or acquisition is necessary in the interests of defense, public safety, public order, public morality, public health, town and country planning or the development or utilization of property so as to promote the public benefit; and
(b) the necessity therefor is such as to afford reasonable justification for the causing of hardship that may result to any person having an interest in or right over the property; and
(c) provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation.
(2) Every person having an interest or right in or over property which is compulsorily taken possession of or whose interest in or right over any property is compulsorily acquired shall have a right of direct access to the High Court for -
(a) the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled; and
Provided that if Parliament so provides in relation to a matter referred to in paragraph (a) the right of access shall be by way of appeal (exercisable as of right at the instance of the person having the right or interest in the property) from a tribunal or authority, other than the High Court, having jurisdiction under any law to determine that matter.
(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court or any other tribunal or authority in relation to the jurisdiction conferred on the High Court by subsection (2) or exercisable by the other tribunal or authority for the purposes of that subsection (including rules with respect to the time within which applications or appeals to the High Court or applications to the other tribunal or authority may be brought).
(4) and (5) (Deleted by 13 of 1977, s. 3.)
(6) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) or (2) -
(a) to the extent that the law in question makes provision for the taking of possession or acquisition of property -
(i) in satisfaction of any tax, duty, rate, cess or other impost;
(iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;
(iv) in the execution of judgments or orders of a court in proceedings for the determination of civil rights or obligations;
(v) in circumstances where it is reasonably necessary so to do because the property is in a dangerous state or injurious to the health of human beings, animals or plants;
(vi) in consequence of any law with respect to the limitation of actions; or
(vii) for so long only as may be necessary for the purposes of an examination, investigation, trial or inquiry or, in the case of land, for the purposes of the carrying out thereon of work of soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to the development or improvement that the owner or occupier of the land has been required, and has without reasonable excuse refused or failed, to carry out),and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; or
(b) to the extent that the law in question makes provision for the taking of possession or acquisition of -
(i) enemy property;
(ii) property of a deceased person, a person of unsound mind or a person who has not attained the age of eighteen years, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;
(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or
(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust.
(7) Nothing contained in or done under the authority of an Act of Parliament shall be held to be inconsistent with or in contravention of this section to the extent that the Act in question makes provision for the compulsory taking possession of property or the compulsory acquisition of any interest in or right over property where that property, interest or right is vested in a body corporate, established by law for public purposes, in which no moneys have been invested other than moneys provided by Parliament”.
Mr. Ochieng Oduol contended, and rightly so, that this court is obliged to first determine whether it has jurisdiction to entertain this matter. He relied on the decision in the case of The Owners of The Motor Vessel “Lilians” Vs. Caltex Oil (Kenya) Ltd  KLR, where the Court of Appeal stated as follows:-
“Jurisdiction is everything. Without it a court has no power to make a step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
He further maintained that the fundamental rights and freedoms as enshrined under the Constitution of Kenya are only owned as against the State and not private individuals and that disputes as between individuals whether or not they involve infringement of the fundamental rights and freedoms fall under the province of private law.
Mr. Mwangi, however made strong response thereto, and it his view, this court has jurisdiction to determine this matter under section 84 of the Constitution which provides that Constitutional Petitions can be made and entertained “without prejudice to any other action in respect of the same matter which is lawfully available.”
He relied on the decision in the case of Anarita Karimi V. Republic (1979) KLR 154 where Trevelyan and Hancox JJ stated at page 156 that “we would however again stress that if a person is seeking redress from the High Court or an order which invokes a reference to the Constitution, it is important (if only to ensure that justice is done in his case) that he should set out with reasonable degree of precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed and further state that it is not enough to merely state the particular sections allegedly infringed. The Petitioner must as of necessity explain how the particular sections have been infringed. That has respectfully not been done here.”
He also relied on the decision in the case of Peter O. Ngoge v Francis Ole Kaparo & 4 others H.C Misc. Application No. 22 OF 2004 where the court held inter alia that:-
Mr. Mwangi was however of the view that the right to personal liberty is one of the internationally recognised fundamental civil liberties and is protected by the aforesaid section 72 of the Constitution which states inter alia the “anyone who is unlawfully arrested or detained by another person shall be entitled to compensation therefore from that other person.”
He maintained that Rule 5 of Article 9 of the International Covenant on Civil and Political Rights reiterates the position and that it provides inter alia that “anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation.” It was his submission that his client was detained for closely over 3 years and that the only question would be whether his detention was caused by the respondent and also whether it was unlawful.
He therefore argues that he had nothing to do with the alleged detention and reiterates that the same was ordered by the Minister in charge of Internal Security, and that in any event, the petitioner cannot after a period of 28 years seek to question the validity of his detention, which in his view was found to be lawful and was so declared by a court of law in the aforementioned matter and that to reopen the matter is an abuse of court process as the issues are now res judicata.
He relied on the decision in the case of Booth Irrigation Ltd., (No. 2) High Court Misc. Civil Application No 1052 OF 2004 where the court stated that “even as regards Constitutional applications, the non disclosure of material facts to the court must lead to their dismissal because the process of the court ought not to be abused by the applicants who appear before it.”
As stated earlier, the interested party supported the stand taken by the respondent. It had, filed on its behalf a replying affidavit in which it claims the ownership L.R. No 11793. It’s learned counsel associated himself with the respondent’s counsel and also made brief submissions, which were for all purposes and intent a replica of those made by the respondent’s learned counsel Mr. Ochieng Oduol, save that, in essence the interested party intention is to secure the above mentioned parcel of land.
I have taken considerable time to go through the pleadings, submissions and authorities supplied to the court by the able counsel. I do appreciate the fact that this being the first matter of its nature in our courts, it will no doubt have an input in the jurisprudence on Constitutional law more so in human rights litigation in Kenya.
The first issue that any court ought to determine in any matter before it would be whether it has the jurisdiction to hear that matter for without it, it cannot proceed at all, and so, does this court have the jurisdiction to entertain the petition herein, for while the respondent ant the third party argue that I lack the relevant jurisdiction the Petitioner argues otherwise.
Further thereto, section 84(1) of the said Constitution provides that “subject to Subsection (6), if a person alleges that any of the provisions of Sections 70 to 83 (inclusive) has been, is being or is likely to be contravened in relation to him (or, in case of a person who is detained, if another alleges a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.”
Needles to say, it is clear from the above provisions of the Constitution that a person who alleges (not “proves”) that his fundamental rights have been contravened has a Constitutional right to seek redress in the High Court. It would amount to grave injustice to lock out a petitioner from filing his claim purely because the respondent believes that the claim has no merit. The issue of merit is substantive while the filing of the claim is procedural and in that regard, upon filing his claim, a petitioner such as this petitioner has a further and I must say a heavier burden to discharge, this being that, he ought to prove his claim to the required standard, and hence my order during the initial hearing stage, that the respondent’s preliminary objection be dealt with during the main hearing.
The petitioner has been able to establish that he was deprived of his rights at a time when he was not in a position to defend those very rights, due to his detention, and in a manner that defied company law.
I need not belabour the point any further, for this court has the jurisdiction to entertain this petition.
· Do fundamental rights apply vertically or horizontally?
In the Kenyan experience or rather our jurisdiction, the courts have on several occasions previously held that human rights are applicable vertically and not horizontally.
In their attempts to convince the court that the petitioner case seriously lacks in merit, the respondent and the interested party embrace the above stated position.
Counsel for the respondent and the interested party may as well argue that the horizontal application of human rights does not arise, while the petitioner would celebrate such a finding by this court.
The rigid position that the human rights applies vertically is being overtaken by the emerging trends in the development of human rights law and litigation. We can no longer afford to bury our heads in the sand, for we must appreciate the reality, which is that private individuals and bodies such as clubs and companies wield great power over the individual citizenry, who should as of necessity be protected from such non-State bodies who may for instance discriminate unfairly, or cause other Constitutional breaches.
The emerging jurisprudence in Kenya tends now to lean towards the South African stand, and that there are instances when the non-State actors can be and have been held liable for breach of fundamental rights.
In my humble opinion, it is important to embrace the progressive trends, for that is the only way in which we can move towards developing our jurisprudence to be tandem with other jurisdictions, and obviously with a view to ensuring that fundamental rights are enjoyed in the manner enshrined in our Constitution. Needless to say, being members of the International Community, and must secure our niche therein.
Waweru J. embraced this new concept in the case of Beatrice Abongo v. National Oil Corporation HCCC No 1268 0f 2004, where he applied the principle and held that a non-State operator was liable for breach of fundamental rights.
It must be clear by now that I find that the fundamental rights are applicable both vertically and horizontally, save that horizontal application would not apply as a rule but it would be an exception, which would obviously demand that the court do treat on a cases by case basis by examining the circumstances of each case before it is legitimised.
· Limitation period in Constitutional matters.
As stated earlier, there is no set time limit for filing petitions of the nature that is before me. One might as well argue that this would create a loophole for exploitation and abuse by litigants. It cannot be ruled out that litigants who are certain that their claims would be otherwise stale, may decide to disguise them as Constitutional matters, with a view to escape the available defences of time-bar. It is for the court to ensure that the process is not abused by such litigants who for one reason or another might appear to have slept on their rights for far too long, only to wake up from what would be described as ‘a deep slumber’ after the expiry of what would be the limitation period under other aspects of the law, and decide to shield under the Constitution. Although I have found that there would be no time limitation in Constitutional matters that cannot and should not be interpreted to mean that a litigant can elect when to file his matter regardless of the period.
In the Trinidad and Tobago case of Durity v Attorney General  UKPC 20 the court held at page 212 inter alia that:
I would readily agree with the concept and add that where it is alleged that a petitioner has taken his sweet time in preferring a claim, the burden of convincing the court that he had a good reason for moving late, lies with him, and he must explain the delay and time taken with a view to convincing the court that he could not have moved earlier.
This petitioner claims that he was detained in 1982 for about three years. This fact is not disputed. He did not file this petition until the year 2009, which was 27 years after his release. His explanation is that the respondent who was the President of Kenya at the material time was protected by section 14 of the Constitution which provides that:
A period of 6 years would appear to be a long time by normal standards, and one may argue that had he been zealous, he could have filed his case much earlier to show that he is not motivated by any other reason apart from his quest for justice, but given the surrounding circumstances, it cannot be said that there was an inordinate delay on his part, and I would not hold it against him especially because as stated earlier, our Constitution has not laid down specific time limit.
He shall have the benefit of doubt in the circumstances.
The respondent and the interested party are of the view that the petitioner’s claim is rather confusing or mixed up, and that it contains what appears to fall within the province of Constitutional law but that a keen scrutiny would reveal otherwise.
The pleadings before me reveal that the petitioner’s claim is hinged on unlawful detention and alleged sale of the subject properties, which he held a stake in and which were disposed of while he was in what he claims was in unlawful detention.
While I have no difficulty in appreciating that detention abrogates the freedom or right to liberty and that is certainly a Constitutional matter, the problematic issue is the one of sale of property, for a sale is a commercial transaction which is within the province of commercial law.
The petitioner states as follows in his submissions, on the particulars of infringement:-
The respondent states that it not clear the circumstances under which the petitioner’s right was violated under section 75 of the Constitution, wherein the protection from deprivation of property is guaranteed. His view is that if his property was stolen, he could have gone to an ordinary court to seek criminal sanctions or to the civil court for orders of conversion of property or any other available remedy. Besides that, the properties in question are not personal but held by companies which are distinct legal personalities with the capacity to sue the respondent.
The fact that the subject properties were disposed of while he was in detention is not disputed. In view of the fact that the subject properties were then held by companies, in which the petitioner was only one of the several shareholders while decisions in a company are taken through resolutions by the majority, the issue that would then arise would be whether, the disposal would give rise to the infringement of his rights as enshrined under section 75 aforesaid.
Many would clearly state that the Constitutional jurisdiction of the High Court should not be trivialised, and that where a litigant has access to court in the ordinary civil manner, that should be the right channel to pursue, and although it might appear impressive to file a claim in the Constitutional court, many would again argue that the Commercial and Tax Division of the High Court is best suited and that it would be more expeditiously handled as a commercial dispute. Besides that, there is a presumption that the ordinary laws that are applied by our courts meet the Constitutional threshold and that they are interpreted to promote the core values and the spirit of the Constitution.
That being the case then, do the issues raised in this petition fall within the ambits of the Constitutional court or do they fall squarely within the preserve of private law?
I have already made a finding detention would fall under Constitutional law since it is a derogation of the right to liberty, but there is no absolute right. The rights contained in the Bill of Rights or Chapter V of the Constitution have limitations. They are limited by other laws and the rights of others. A law of general application can validly limit the rights in the constitutional particularly if the said law is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
The petitioner was detained under the provisions the Preservation of Public Security Act as read together with the Public Security (Detained and Restricted Persons) Regulations, which are now repealed. The court has no knowledge of the exact reasons why the Petitioner was detained but the above mentioned law was one of the general application. There is no reason to believe, nor is there is an iota of evidence that the law had been passed to target the petitioner in particular, simply because the said law was for general application, for the security on the entire Nation.
As stated earlier, the respondent did not file an affidavit in response to the petition and the petitioner thus invites the court to make another presumption under the then Order VI Rule 9 of the Civil Procedure Rules wherein it provided as follows:-
“(1) subject to subrule (4), any allegation of fact made by a party in his pleadings shall be deemed to be admitted by the opposite party unless it is traversed by that party in his pleadings...
(2) A traverse may be made either by denial or by a statement of non-admission and either expressly or by necessary implication.
(3) Subject to subrule (4) every allegation of fact made in a plaint or counter claim which the party on whom it is served does not intend to admit shall be specifically traversed by him in his defence or defence to counter claim; and a general denial of such allegation; or a general statement of non-admission of them shall not be sufficient to traverse of them;
(4) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.”
According to the petitioner, and going by the above provisions of the law, the complaints against the respondent contained in the petition must be taken as proved.
He maintained that the respondent was the custodian of fundamental liberties because of the Oaths of Office which he took and in which undertook ‘to defend the Constitution of Kenya and to do right to all manner of people according to the laws and customs of the Republic without fear or favour, affection or ill will’.
The onus of proving the issues raised in the petitionlies on the petitioner. He must discharge that burden to the required standard without enlisting support from the court.
Though the respondent and the interested party raised it, I am of the view that the fact that the petitioner has not enjoined the Minister or the Attorney General in these proceedings is not fatal for the reasons adduced for the detention would not, in my view, apply to the two. In any event the evidence on record would tend to suggest that the detention was not carried out for purposes of the preservation of public security, and that being the case then he would not have any adverse orders to seek against the said two.
In my view the additional facts that are revealed in this petition, which again, are not denied, tend to show that the petitioner’s detention was intended by the respondent to secure a personal and ulterior commercial advantage.
The law is clear in that the powers to order detention lie with the said Minister and not the President. However, there is no reason at all to believe that the said detention was carried out for the purposes which are laid down in the Preservation of Public Security Act, for in my view, it was not. Having held the high positions of Deputy Director of Intelligence and Deputy Commissioner of Police in the respondent’s government, it is obvious that the respondent was very well aware of what was to befall his Police Chief and that he is the one who actually made the decision to have him detained, with the sole purpose of interfering with his personal liberties and his rights to the companies and the subject properties. In my humble view, the Minister’s role was simply to execute that decision by his boss who happened to be this respondent. It is for these reasons that I find that the detention was not legal, nor was the decision official. In my mind, the respondent could not have, nor did he act in pursuance of his authority as the President of Kenya, for it clearly contradicted his oath of office.
I need not re-emphasize the fact that public officers, which will include ex-Presidents of countries would now be held liable for illegal acts which they commit while allegedly acting under the ostensible authority of the law. The respondents acted in his personal capacity, and he cannot escape the responsibility for the said detention, for courts should protect fundamental rights and will, where a petitioner proves his case, grant orders for compensation for the derogation.
It is evident from the above facts, that not only was the respondent’s action oppressive, arbitrary or unconstitutional, but that it was calculated to procure him financial benefits at the petitioner’s expense, for which the latter deserves punitive damages. Based on the status of the respondent, I award the petitioner the sum of K.Shs.50,000,000/-.
The petitioner deposed, that among the subject properties, Ruprani House, Kenwood House that belonged to Fourways Investments Limited, Corner House which belonged to Sheraton Holdings Limited were all disposed of for specified sums. He also deposed that though he had no knowledge of how much Atlas building that belonged to Fourways Investments Limited was sold at, he is however aware that at the time of his detention the company had received an offer to purchase it at K.Shs. 13,000,000. He finally deposed that the land in Solai, which belonged to Mokamu Limited at the material time, and whose acreage was 1020 acres, was then valued at approximately K.Shs.100,000 an acre and that on it were 800 heads of cattle each valued at about K.Shs.65,000, as well as various miscellaneous assets then valued at about K.Shs. 20,000,000. Save for the interested party’s claim that the property Solai was never owned by the companies, all the other deposition by the petitioner was not controverted. The pleadings reveal that by its replying affidavit, sworn on its behalf by its General Manager one Joseph Tole Maganga, the interested party on 28/4/2010, it is deposed that ‘the piece of land stated as L.R. No. 11793 in Solai, Nakuru District belongs to the interested Party and has never been the property of M/S Mokamu’ the deponent did not deem it necessary to avail proof to support that contention, and in view of that omission, and also in view of the fact that the respondent chose not to controvert the issues which the petitioner deposed on, I form the opinion that the said property formed part of the subject properties.
He also prays for interest, and bases his claim on the grounds that having been business partners with the respondent, and having denied an opportunity to earn from his investments, he suffered losses and in the circumstances, the court should award him the said interest at commercial rates of 35% p.a. with effect from 1/7/1982, by which date, the sales had been completed. He relies on the Kenya Court of Appeal decision in the case of Shah v Guilders International Bank Ltd. In as much as he deserves interest for the lost opportunities, I however feel that the rate of 35% p.a. would be on the higher side especially because he did not show how he had arrived at the said figure. I would thus award him, which I hereby do, an interest at court rates of 12% p.a. on a compounded basis, on the sum of K.Shs. 80,161,720 with effect from 1/7/1982 till payment in full.
Interest on the award of K.Shs. 50,000,000/- shall accrue at the rate of 12% p.a. from the date of this judgment till payment in full.
In view of my findings on the claims by the interested party, whose role was quite unclear, I decline to make any orders in its favour.
The upshot is that the petition is allowed with costs to the petitioner, to be borne by the respondent and the interested party.
Delivered in the presence of: