The Appeal Court has suspended an award to 16 Ugandan and Rwandese firms totaling Sh6.3 billion for goods destroyed during the 2007-08 post-election violence.
The High Court had ordered the state to pay Kampala City Traders Association, Katraco Uganda, Intraspeed Logistics and Mugenga Holdings which claimed their 22 trucks on transit to Nairobi were destroyed in the chaos.
Dooba Enterprises, Willex Uganda, SEBCO Uganda, KPI Limited, Bunyonyi Safaris, Seven Hills Impex, Uganda Agricultural Tools, Board City, Bidco Uganda and Mugenga Holdings laid claim against the Kenyan government for each truck that was destroyed.
On November 27 last year, the Inspector General of Police and the Attorney General lodged an application in seeking a stay order pending the hearing and determination of the appeal.
Judges Roselyne Nambuye, Gatembu Kairu and Agnes Murgor ruled the amount involved was astronomical and if the state's appeal succeeded, the foreign firms would be unable to repay the money.
“In the circumstances, we think there is merit in maintaining the status quo pending the hearing and determination of the appeal. We accordingly allow the application and order a stay of execution of the judgement delivered on June 28 last year by the High Court pending the hearing and determination of the appeal,” the judges ruled.
They further ruled that to ensure the state does not go to sleep, “we further direct the applicants to file and serve the memorandum and record of appeal (if they have not already done so) within 45 days from the date of delivery of this ruling failure to which the order for a stay shall automatically stand discharged.”
In the appeal, the government argued that during the hearing of the appeal, it will demonstrate that the judge was wrong in holding, among other things, that the government of Kenya failed in its obligation to provide security to the firms when there was no evidence produced in that regard.
The state also argued that notwithstanding that judgement on liability had been entered, the firms remained under an obligation to prove their case to the required standard which they failed to do.
It said the judge failed to appreciate that the firms' claim, based on the total negligence and breach of statutory duty, was time-barred under Section 3 of the Public Authorities Limitation Act.
However, the firms strenuously opposed the application.
Intraspeed Logistics managing director John Bosco Rusagara argued that the intended appeal was misconceived, lacked merit and was not arguable.
He added that the state did not adduce any evidence during the trial with the result that the evidence presented by the respondents was not controverted.
Rusangara argued that considering the loss incurred, it would be unfair and unjust to deny them the fruits of the judgement.
Mugenga Holdings argued that if the order sought is granted, the firm would suffer extreme prejudice and further irreparable loss as the bank has threatened to sell his property in Uganda.
Last year in June, Justice Mbogholi Msagha ruled that 15 firms were to share Sh4.7 billion while Mugenga, who had filed a separate suit, would get Sh1.62 billion as compensation.
The award was the largest in post-election violence compensation.
The judge said during the hearing, state lawyers admitted the claims laid by the firms but still asked the court to dismiss the suit.
According to the judge, the Attorney General wrote to the then Permanent Secretary in the Office of the President notifying him that it was impossible to escape liability as two commissions had found that the police failed to protect businesses during the 2007 polls chaos.
“As a result of the violence, the plaintiffs lost trucks and goods by way of arson and theft,” the firms claimed.
This mostly happened on the Nakuru-Eldoret-Malaba and Nakuru-Busia highways.
(Edited by R.Wamochie)
