, NAIROBI, Kenya, Oct 1 – The Chief Operating officer in Sh240 billion Tatu City project wants the disqualification of Justice Eric Ogola from hearing the commercial disputes touching on parties involved in the lucrative project.
Christopher Barron has raised concern over the handling of the case by the judge.
He says serious allegations have been raised which touche on Sh50 million bribery that changed hands to influence the outcome of the case.
Barron applies that Justice Ogola recuses himself and the file be forwarded to the presiding judge of commercial and admiralty division for re- allocation to another judge.
The allegation contained in a letter authored by Wilfred Gitonga of Kenyans and Justice and the same has been forwarded to the Chief Justice, Ethic and Anti- Corruption Commission, Director of Public Prosecution, and Commission for Administrative Justice raises serious claims over the handling of the commercial dispute.
Barron says that he is apprehensive that there is real likelihood of bias and confidence in the judge has been eroded in light of serious allegations raised by Gitonga.
“Justice should not only be done but be seen to be done,” he says.
When the matter comes up on October 13, points of law will be raised as part of the application for disqualification.
Last week top consulting firm PriceWaterHouseCoopers (PWC) opted out from carrying out investigation into the accounts of Tatu City due to internal wrangles between the local and foreign partners.
Justice Ogola was told by PWC, that the battle between foreign shareholders Rendearvour and their local partners Nahashon Nyaga and Vimal Shah have made it difficult for the audit to be conducted as ordered by the court.
The firm says that shareholders have declined to execute document to pave way for the audit to commence.
Justice Ogola ordered for the audit following a standoff between the shareholders on the actual position of loans taken to purchase land for the project. PwC says that shareholders have not agreed on the terms of loan.
“The letter of engagement has not been signed by the parties. There appears to be hostility between the parties which may not allow us to proceed. We are a professional body and some disparaging remarks have been made about PwC by one of the parties. We therefore seek to withdraw from the assignment,” PwC lawyer Peter Gachuhi told the court.
Gachuhi told the judge that PWC wrote to the parties involved in the dispute saying that it was ready to commence the audit, but did not get a go ahead to investigate the accounts.
The judge had given parties up September 23 to file an audit report on the offshore loan accounts, but the same has not been complied with.
The court directed the parties to appear before on October 1 for a hearing.
The audit report was intended to quantify how much money had been borrowed from the offshore financiers since the project started, and what balance is still owed to lenders.
Stephen Jennings and Hans Jochum Horn had in an application alleged that Nyagah and Shah had good relationship with PwC and that there was likelihood for them to use their closeness to influence the outcome of the audit.
The dispute has persisted since February and has slowed down the project. The foreign partners accuse their local partners of breach of contract by transferring land meant for the project.
Consequently the (CID) has recommended for the arrest and prosecution of Nyagah over an alleged action to defraud real estate of Sh5 billion.
Detectives investigating transactions involving the project’s subsidiaries have concluded that Nyagah used close relatives and associates to irregularly transfer shares worth Sh5.3 billion, and has recommended that he and five others be charged in court.
Nyagah and two city lawyers Nelson Havi and Edward Osundwa have obtained a court order stopping their arrest and prosecution.