An investor has lost a bid to have the Supreme Court hear his appeal in which he is seeking Sh465 million from Jimnah Mbaru-owned Dyer & Blair Investment Bank.
The Supreme Court affirmed the decision of the Court of Appeal issued in June this year, saying the issues raised by John Kungu Kiarie do not meet the threshold as they are not of general public importance but linked to a business relationship.
The law only allows the apex court to handle appeals that involve matters of public importance or interest.
“We find no merit in the motion and see no justification in disagreeing with the conclusion reached by the Court of Appeal, that the application has not passed the threshold for the grant of leave to appeal to this court,” the Supreme Court judges said.
The judges said none of the matters sought to be raised in the intended appeal go beyond the personal interests of the parties.
“We find that they all relate to private matters based purely on a written contract between Kungu and the investment firm. The determination of any or all of these issues will not affect any other group of persons or the public in general,” they said.
Dyer & Blair and Kungu had a long standing relationship. The former was the latter's investment adviser and stockbroker from time to time.
Of significance to the application before court was a transaction in 2003 where Kungu availed to Dyer & Blair Sh100 million to invest on his behalf.
The funds, however, became the subject of investigations by the Central Bank's anti-banking fraud unit. The investigations culminated in Kungu being charged with several counts of obtaining money by false pretence.
His accounts were subsequently frozen. But the issues were resolved and Kungu was acquitted. “It turned out that the freezing was unwarranted,” states court records.
What followed was the investor releasing to Kungu the principal amount of Sh67.5 million and interest of Sh2.2 million. Kungu, according to the court papers, was shocked and wondered how such a colossal amount (the principal sum), which had been held by Dyer & Blair for over four years could earn such low interest, bearing in mind that during the pendency of the criminal trial, Kungu successfully applied for the release of Sh24 million.
He demanded Sh465 million as loss of income and interest of 16 per cent per annum to be calculated on a daily basis until payment in full.
High Court judge Eric Ogola ruled in his favour and directed the brokerage firm to pay Sh310 million and interest accrued. But the Court of Appeal overturned the decision in July 2017.
The same court also declined his request to escalate the matter to the apex court. Aggrieved, he filed an application at the Supreme Court seeking a review but the same has since been declined.