London embassy funds free from court order: law firm

Funds meant for the day-to-day operations at the Kenyan High Commission in London have not been frozen.

Instead, they are being treated as being outside the scope of a freezing order that was granted by a London court over the High Commission’s assets in a Sh800 million debt case.

“We expressly confirmed to both the Attorney General of Kenya and the Kenyan High Commission in December last year that funds used for the operational expenses of the Kenyan High Commission were being treated as being outside the scope of the freezing order,” a faxed statement signed by Kirkland and Ellis International law firm said.

The law firm is representing Inspection and Control Services Limited (ICS) in a case filed against the Kenyan Government over a contract that the Ministry of Finance entered into with the Swiss firm in April 1998.

Under the terms of the contract, ICS was to provide pre-shipment inspection services to the government, which officials at the Foreign Affairs ministry insist were never rendered.

Freeze order

ICS, however, has dismissed the allegation saying the amount in question was properly assessed as due by an International Arbitral Tribunal after hearing witnesses and submissions from the Ministry of Foreign Affairs and the Attorney General. Kirkland and Ellis also denied that a freeze order over the assets owned by the High Commission had been lifted.

Responding to an article published in the Daily Nation last Thursday, the law firm said the freezing order could only be varied or lifted if an application was made by the defendant (the Kenyan Government), with notice to the plaintiff (ICS). “We have confirmed with the court and can categorically state that no such application has been made nor have we been notified of any such application,” the law firm said.

The government had threatened to retaliate if the British Government allowed the order to be effected and even summoned the British High Commissioner in Nairobi, Mr Rob Macaire, last December, to protest at the action taken by the British courts. Through the Foreign Affairs ministry, the government demanded the decision be rescinded to preserve the immunity of assets belonging to the Kenyan mission.

A letter signed by Mr Richard Cox, the deputy head of the Protocol Directorate at the UK Foreign and Commonwealth Office, dated December 22, 2009, while directing that the freezing orders be lifted, reminded the Royal Court of the doctrine of immunity.

However, Kirkland and Ellis said the freezing order had not been lifted, adding it was “very much in place and will continue to remain in force until payment of the debt in full or further orders of the court.” Attorney-General Amos Wako represented the government during the arbitration, while lawyer Fred Ojiambo was the expert witness for the Swiss firm. Prof Githu Muigai appeared for the Treasury.