Juma murdered on day he filed papers in Sh2trn case against State

Jacob Juma, the controversial businessman who was killed on May 5, died on the same day that he filed submissions in a case in which he had sued the Kenyan government for Sh2 trillion in an international court.

He sued after the government cancelled his licence to Mrima Hill, a region in Kwale County believed to be so rich in rare earth minerals that the initial decision to allocate him the entire area remains a baffling mystery.

Juma is said to have organised a press conference the following day to report on the progress of the case.

He had claimed that Mining Cabinet Secretary Najib Balala had asked him for a bribe so as not to cancel the licences to Cortec Mining, an allegation that Mr Balala vehemently denied.

The cancellation might, however, have had something to do with the manner and unclear circumstances in which the licence was granted in the first place.

The site is believed to have deposits of niobium, neodymium, dysprosium, europium, terbium and yttrium.

Niobium is used to produce high-strength low alloy (HSLA), an additive to ordinary steel that increases its strength while reducing its weight.

Rare earths are crucial in making high-tech electronic products such as superconductors and miniature magnets, whose demand has exploded.

Cortec Mining Kenya, Cortec Pty and Stirling Capital Ltd had on May 5 filed submissions for their case against the government of Kenya, in which they sought compensation for the cancellation of their mining licence for rare earth minerals in Kwale, which they claimed are worth Sh61 trillion.

Documents acquired from the International Centre for Settlement of Investment Disputes (ICSID) in Washington, DC, indicate that the three companies filed a “Memorial of Merits” for their case number ARB/15/29 on the same day the controversial businessman was killed.

The court then issued a timetable for the hearing of the case on May 6 but, by then, Pacific Wildcat's Kenya director, Mr Juma, had already been killed.

At the time of his death, Mr Juma owned a 30 per cent stake in Cortec Mining Kenya while Pacific Wildcat Resources, a company listed on the Toronto Stock Exchange, owned the remainder through Stirling Ltd and Cortec Pty Ltd, which are based in the UK.

Pacific Wildcat acquired its share of Cortec Mining Kenya in September 2012.

STATE'S DEFENCE
Although there is no suggestion that Juma’s killing and the case are related, it adds another layer of complexity to the death of a man who led a complicated life.

Director of Criminal Investigations Ndegwa Muhoro and Inspector-General of Police Joseph Boinnet did not comment on the latest development.

The government had unsuccessfully tried to get some dates of the hearing changed. On July 8 last year, the ICSID agreed that Cortec’s case qualified to be heard and went ahead to constitute a tribunal to hear it.

The government had argued that the July 20, 2017 date set by the court on March 17 to deliver a ruling on whether Kenya had a case to answer was unworkable.

A letter sent to the court by the government through DLA Piper, a law firm in the UK, on February 29 argued that the time would clash with the 2017 General Election, which it said would not be appropriate.

It argued that during that period, public servants would not be able to make any “significant decisions” or “incur substantial expenditure until a new government takes office”, which would hamper its participation in the case.

“Accordingly, there will not be much for Kenya’s public servants to deal with until towards the end of July, when it will be known whether or not the claim survives the expected jurisdictional challenge,” the government argued according to the court papers.

“Moreover, while the presidential election is on August 8, 2017, the new president will take at least 21 days to assume office. This would take ‘at least’ until August 29. The election could be contested, and possibly a new election ordered which will take ‘at least 85 days’, that is, another two and a half to three months, with the possibility of more political controversies to follow,” the government added.

Mr Juma’s company and his associates are represented by Clifford Chance, an Australian law firm, through lawyers Sam Luttrell, Peter Harris and Isuru Devendra.

DLA Piper is leading the government’s defence team in the case, which includes lawyers Karori Kamau, Milly Odari, Ben Anderson and Harriet Foster.

Also representing the government in the case is Deputy Solicitor-General Muthoni Kimani, Njeri Kimani and Senior State Counsel Pauline Mcharo.

However, while declining the government’s application, the tribunal on May 6 argued that whatever was going to take place at that stage of the tribunal would be “lawyers’ work”, and the election would not, in any way, be a hindrance in the course of justice.

“The Tribunal does not think it appropriate to create a schedule around a possible need to accommodate a contested presidential election. If there is a challenge to the election, and DLA Piper in fact encounters the potential concerns outlined in its letter, the Tribunal will of course have to reassess the situation and, if necessary, reschedule as may be required,” it said.

THE GENESIS
Pacific Wildcat said Mr Juma swore an affidavit regarding the case on the day he was killed. But the court has declined to release further information on the case, including Mr Juma’s affidavit, citing confidentiality.

The dispute between the Kenyan government and Mr Juma and his associates originated in November 30, 2007, when the former commissioner of mines, LK Biwott, opened up the protected Mrima Hill in Kwale to Cortec for prospecting, and gave the company exclusive rights to prospect for minerals.

The company then received a licence on March 26, the same day the Supreme Court began hearing a petition by Cord leader Raila Odinga against the March 4, 2013 election of Uhuru Kenyatta.

Mr Juma and his associates visited State House on April 26, 2013, according to pictures shared by the President on his Facebook page.

In March 2014, the then Mining Cabinet secretary cancelled their licence after Cortec declared that the minerals at Mrima Hill were worth Sh61 trillion.

The company then sued in the High Court to seek compensation and lost, prompting the case it simultaneously filed at the ICSID and the Court of Appeal.