The Kenya Commercial Bank has scored a major win after the Court of Appeal declined to re-open a decision that paved way for the auction of a 433-acre coffee farm in Thika, over a defaulted loan of Sh70 million.
Benjoh Amalgamated had pleaded with judges Asike Makhandia, Kathurima M'inoti, Sankale Ole Kantai, Francis Tuiyot and John Mativo to re-open the matter, saying they did not retain the services of advocate Gedion Meenye to record the consent in court, paving way for the auction.
The consent was recorded on May 4, 1992. Benjoh also sought to have the matter reviewed saying they had new evidence that could change the course of the case.
The evidence, according to court proceedings, is an affidavit sworn by Meenye on December 2017.
In the affidavit, the advocate denies recording the consent and also denies having been instructed by Benjoh to represent them in the said case.
Based on this, Benjoh argued the consent was invalid because Meenye, who allegedly recorded it, did not have a practicing certificate at the time.
But the appellate judges dismissed the application. The judges agreed with KCB's submissions made by lawyer Philip Nyachoti that the validity of the consent had already been affirmed by all courts and it would be an absurdity to re-open the matter.
They added that they are bound by the decision of the Supreme Court which already determined the question of the consent validity.
"It is mind-boggling that Benjoh is inviting this court to re-open the same consent that the Apex court declined to re-open. The applicant is naively or mischievously asking this court to circumvent the Supreme Court decision which we decline to do."
In settling the protracted legal battle, the judges said it was inconceivable to believe that it took Benjoh decades to discover it never instructed Meenye to represent it in the court cases.
"Benjoh now wants us to believe that all this time it never knew it's lawyer on record. They are suggesting that Meenye emerged from nowhere and actively represented it in court without it's instructions."
They termed Benjoh's assertions regarding Meenye as "the Hallmark of dishonesty which should not find its way into the corridors of justice"
The dispute between the parties has had a long history spanning in excess of 25 years, from 1992 when the first suit was filed in the High Court. At least 14 suits with all manner of applications have been made since.
The dispute between the parties has been canvassed in all the courts of record in this land, all the way to the Supreme Court.
The background of the case can be briefly traced to April 12, 1989 when KCB granted certain financial facilities to a company called Benjoh Amalgamated Limited, with Muiri Coffee Estate Limited acting as a guarantor.
Benjoh Amalgamated Limited “Benjoh”, wishing to start a flower export business applied for a loan of Sh18,675,000 through KCB and used two pieces of land in Nyandarua and Kiambu as security.
Muiri coffee estate came in as a guarantor and offered the 443 acre piece of land as security.
The consent, which has been the bone of contention, shows Benjoh and Muiri estate - owned by former Gatundu MP Ngengi Muigai admitted liability, and further confirmed that KCB could sell the properties if they failed to repay the loan.
Benjoh defaulted in repayment and KCB went for the coffee farm. It was sold to Bidii Kenya at a price of Sh70 million.
Muigai then filed numerous suits in a bid to save the land- now worth Sh3 billion - but has been unsuccessful.