- The case which dates back to the late 80’s proceeded Monday before a five-judge bench at the Court of Appeal.
- Benjoh Amalgamated Limited stated that they did not retain the services of advocate Gedion Meenye to record the consent in court.
Image: FILE
The court of appeal will on June 21 rule on whether it will set aside a consent order that paved the way for Kenya Commercial Bank (KCB) to auction a 443-acre farm in Thika over a defaulted loan of Sh70 million.
The case which dates back to the late 80’s proceeded Monday before a five-judge bench at the Court of Appeal.
Benjoh Amalgamated Limited stated that they did not retain the services of advocate Gedion Meenye to record the consent in court.
The consent was recorded on May 4 1992.
But Benjoh through advocate Kyalo Mbobu told the appellate Judges that his client never retained the services of Meenye to record the consent.
“How he ended up recording the consent is what beats logic. Order made in Dec 2017 ought to be recalled and corrected for purposes of justice of this case,” he said.
The consent which is the bone of contention was recorded on May 4, 1992, to the effect that Benjoh and the guarantor-Muiri Coffee Estate owned by former Gatundu MP Ngengi Muigai admitted liability, and further confirmed that KCB could sell their properties if they failed to do so.
The case dates back to April 12, 1989, when the Kenya Commercial Bank (KCB) granted certain financial facilities to a company 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.
The two companies offered properties in Nyandaraua County and Kiambu as security.
But they defaulted in repayment which led to KCB to instruct a firm of its advocates to realize the securities charged.
The advocates in turn instructed auctioneers to advertise and sell by public auction the charged properties.
But a day before the scheduled auction, Benjoh and Muiri filed another application seeking to stop the auction.
From then on, numerous applications were filed in court but in 2007, KCB finally sold Muigai's 443 acre land.
It was sold to Bidii Kenya for Sh70 million.
In a brief rejoinder, KCB through Advocate Philip Nyachoti submitted that the application before the court is incompetent, lacks merit and should be dismissed.
He said the validity of the consent has already been affirmed by all the courts and it would be an absurdity to re-open the issue.
He added there is no justification or explanation as to why it has taken all these years to have an affidavit field to clarify the issue of consent from Menye.
"The easiest thing to do could have asked him to clarify the matter by way of an affidavit and they didn't do so," he said.
Nyachoti insisted that there is no reason to warrant re-opening the matter as the issue of consent was already addressed.