The selection panel for appointing the chairperson and members of the Independent Electoral and Boundaries Commission forwarded the names of two fine lawyers, Wanyonyi Chebukati and Tukero ole Kina to the President for nomination. The President nominated Chebukati together with other six commissioners, now awaiting the National Assembly’s approval.
Chebukati’s nomination is now under scrutiny complete with a complaint before the court of public opinion trending in the mainstream and social media. The twin complaint against him concerns the unfortunate and hopeless political question of his ethnicity as well as his professional responsibility as an advocate. I will ignore the slippery politics of ethnicity in the meantime.
Until his nomination, Chebukati was in private legal practice as a partner in Cootow & Associates Advocates, a law firm based in Mombasa and Nairobi. The law firm is now at the centre of an accusation of professional negligence – that Chebukati failed to adequately represent and protect the interests of his client, Nairobi City County Government, leading to a possible loss of monies in excess of Sh325 million. The County Government has however not raised a complaint against the law firm or Chebukati.
Examination of the court filings and decisions would show otherwise. The media jumped into the story without scratching the surface. This is an attempt to scandalise the good name of Chebukati and turning a blind eye on the scandal-City Hall defeating its own claim and reasoning of the court.
Nairobi ELC No. 1144 of 2013, Salima Enterprises Limited v. Nairobi City County
Salima Enterprises Limited owns a parcel of land in Westlands area in Nairobi City County. Sometimes in 2008, the then Ministry of Local Government and the Office of the Deputy Prime Minister initiated negotiations to purchase the parcel. The property was valued by both government and private valuer at Sh55 million.
The transaction fell through. The property is under investigation by the Ethics and Anti-Corruption Commission; it is allegedly that the same designated public land and how it came to be a private land under the ownership of Salima Enterprises Limited is in question but this is besides the point.
Salima Enterprises Limited sued Nairobi City County Government claiming that even after the transaction fell through, the county government forcefully took over, “compulsorily acquired” the property and erected structures in it. The county government instructed the firm of Cootow & Associates Advocates to defend its interest in the suit.
The County Government however did not supply the lawyers with adequate instructions on the case-the line of defence, the documentation and information required to defend the claim. Chebukati would then write to the County Government requesting for detailed instructions, information and documents. The lawyer wrote more than four letters duly delivered to and received by the County Government but none elicited a response.
There being no response and instructions from the client, the law firm could not defend the case. Salima Enterprises Limited therefore requested for and was granted judgment in default of defence. On formal proof, the Court (Hon. Lady Justice Mary Gitumbi J) awarded Salima Enterprises Limited Sh325 million as compensation for the land and mesne profit of Sh200,000 per month from the date of possession.
Chebukati made an application to set aside the judgment. City Hall “woke up” after default judgment had been entered and in a sworn affidavit, the County Government’s Director of Legal Services, one Karisa Iha while confirming that indeed the County Government received letters from Chebukati’s office, depones that the letters “were received by an employee of the applicant [Nairobi City County Government] in the front office or reception, this information was never delivered to the persons concerned for action in order to protect the interest of the applicant and the interest of the public at large” and that City Hall had initiated internal investigations.
The County Government admits its own “systemic inadequacies” that led to the unfortunate situation. Chebukati could not chase a wild goose in the name of defending a client who “refuses” to be defended.
Although she dismissed the application to set aside the default judgment, the learned Justice Gitumbi appreciates the lawyer’s frustration in her ruling saying “it appears that even the counsel for the defendants, Cootow & Co. Advocates, were frustrated by the failure of the defendant to give them instructions on how to defend this suit”.
Ladies and gentlemen this is what Chebukati is being persecuted in public for. Far from the truth, if anyone is to take a bullet for mismanaging the case, it is the County Government. The court is not is not free either. Chebukati and his law firm did nothing below professional responsibility, in fact they exceeded call of duty.
The City Hall cartels and court’s missteps
The firm of Cootow & Associates Advocates and Chebukati being off the hook, reading between the lines and joining the dots, a disturbing picture comes out clearly implicating both the parties and the court. This is the real scandal that the media has refused to highlight.
Starting with City Hall, it is not a coincidence that a lawyer writes not less than four letters to a client and none is and not acted upon. The Director of Legal Services confirms that the letters were indeed received but not transmitted to the authorised officer. It is not farfetched to opine that the county government decided to “tank” its own case to favour Salima Enterprises Limited. A collusion cartel in City Hall is not uncommon.
The property was valued at Sh55 million in 2008 but by 2013, the same was massaged and padded to Sh325 million, an appreciation of more than 600pc in five years! Even with the colossal award to be paid out of public coffers, City Hall has not bothered to appeal against the court’s decision(s).
It is noteworthy that Salima Enterprises Limited did not pray for compensation as its primary prayer(s) in its suit. The plaintiff had asked for an order of injunction to restrain the county government from disturbing its quiet possession and enjoyment of the property, mesne profit and an order to pull down the structures that had been erected in the property.
Whereas default judgments may only be granted in cases of liquidated damages, the prayer for compensation for the value of the property was an alternative prayer. The defendant in this case was a government-no default judgment against government without leave of court.
The court records do not evince application for leave but the court in its wisdom granted the alternative prayer to compensate the Salima Enterprises Limited Sh325 million for the property, even without making an order that it surrenders the lease to the county government. The title is under investigation, what if EACC returns that the land was fraudulently acquired and when the county government will have paid the decretal sum?
Finally, this case was for setting aside the default judgment since the county government had, albeit belatedly, demonstrated a reasonable excuse and triable issues for determination in full hearing of the matter. Government proceedings are special in nature since they touch on public finance which ought to be expended prudently. In the interest of justice and public, the judgment ought to have been set aside.
In fact the learned judge sounded troubled by such colossal sum from the public purse writing that she was disappointed ” by the failure of the defendant to defend this suit bearing in mind the amounts claimed by the plaintiff which would ultimately be paid from taxpayers’ money if the plaintiff was successful which it was”.
Curiously, the County Government’s application to set aside the default judgment was uncontested but the learned judge proceeded to disallow it, even with the benefit of the above information.
(Chelanga is a lawyer and political commentator)