Questions are now being raised on errors in a landmark 2012 High Court judgment that was relied upon to award a city businessman billions of shillings in compensation for the controversial land occupied by the General Service Unit in Ruaraka — and which has been used by the National Land Commission to sanitise the payments.
On Thursday, the Judiciary said it is going to recall the judgment to rectify the errors that had gone unnoticed until they were pointed out by the Nation when it started probing the issue.
The judgment, made by Justice Alfred Mabea of the Commercial Division, not only has inconsistent dates — but has a delivery date of February 12, 2012; which was a Sunday. Kenyan courts do not normally sit on weekends and national holidays unless directed by the Chief Justice.
Apparently, even with the wrong dates, the judgment has been tabled in National Assembly and Senate committees and was used by the Office of the Attorney General to negotiate Francis Mburu’s Afrison Export Limited and Huelands Limited compensation for the Ruaraka land.
It was through this judgment that Mburu’s company was awarded Sh4.1 billion.
While the dates may not affect the integrity of the judgment, the errors are an indictment on both the bureaucratic and judicial system which turned a blind eye on these errors — among other goofs in the compensation on the Ruaraka land.
Why no one within the Judiciary and the AG’s office never noticed that the dates on Justice Mabea’s judgment were wrong even when negotiating the awards is not clear.
For instance, the Camp Valuers report is dated May 11, 2012 — which is a month after the ruling; Clayton Valuers' report is dated November 30, 2012 (nine months older) while Lloyd Masika’s report is dated January 22, 2013 — which is 11 months after Mabea’s ruling.
Yesterday, the Judiciary admitted that Justice Mabea judgment ought to have a date of February 12, 2013 as captured in the case filed later by activist Okiya Omtatah when he had sought to appeal the Mabea judgment.
Mr Omtatah had also questioned why the case was determined by the Commercial Division and not the Environment and Land Court.
The errors can be cured under Section 100 on Recall of Judgment and through Rule 35(1) (2) of the Court Rules, which provides for the correction of “a clerical or arithmetical mistake in any judgment of the court or any error arising from an accidental slip or omission.”
The Judiciary said yesterday that the errors can be corrected by the court either of its own motion or on the application of an interested person, but by yesterday the judgment dated February 12, 2012 was still in the Judiciary website, Kenyalaw.org.
The Court of Appeal had previously ruled that for Rule 35 to apply the mistake or error should have arisen as a result of an accidental slip or omission.
But there is something wrong, too, with the February 12, 2013 date because the Justice Mabea judgment in paragraph five quotes a “replying affidavit sworn on February 5, 2014”. Was this another clerical error?
“Yes, that is another error that should be rectified to read February 5, 2013,” a senior Judiciary official who checked the original file told us while at pains to explain why such errors occurred on such a serious matter.
This affidavit is of importance since it was sworn by Victor Okioma, at the time a Secretary in the Office of the President.
Mr Okioma’s affidavit informed the court that an inter-ministerial task force had recommended the withdrawal of all suits relating to the Ruaraka land, and that the compensation for the 19.5 acres (since it had already purchased 17.8 acres in 1988 for Sh64 million from Kenya Post and Telecommunications Corporation) should “be guided by valuations and survey reports.”
Mr Okioma’s affidavit could not have been filed in 2014 — as indicated in the judgment — since from the records, the office of the Attorney General had a meeting with Afrison on March 15, 2013 in which a sum of Sh2.4 billion was agreed upon as full settlement of the dispute. That puts the date of Mabea’s ruling at February 12, 2013.
Afrison had at first sued Continental Credit Finance, Official Receiver and interim liquidator, and the Attorney General on September 24, 2012 but later withdrew the suit against the bank and the receiver.
That left the AG as the only defendant. Leaving the bank and the receiver out of any negotiations meant that they could not claim any money out of the land — although they still held the title.
A Judiciary source averse to the case told the Nation that officials from the AG’s office and Afrison appeared before Justice Mabea and said they had agreed outside the Court on the compensation. “The parties had apparently agreed outside the court that a final figure for compensation should be based on valuations on record,” said the source.
Why the Attorney General entered the consent dated February 5, 2013 which allowed the court “to enter judgment on the evidence and mean average of valuations on record” is also not clear.
It was these valuations from Camp Valuers, Clayton Valuers and Lloyd Masika that were relied upon to reach a mean of Sh4.1 billion which would later be negotiated to Sh2.4 billion. In his judgment Justice Mabea noticed the “marked disparity” between the valuation report of Camp Valuers and the other two. While Lloyd Masika had valued the property at Sh2.7 billion, Camp Valuers had given a figure of Sh6.4 billion.
But even after noting the huge disparity between the highest valuation and the lowest valuation, the Judge proceeded to adopt the mean value of the three valuations.
“His hands were perhaps tied after the parties consented,” a Judicial source tried to explain.
Why valuations based on similar indices would yield a deviation of 239 per cent is not conceivable and the court missed an opportunity to order an independent court-supervised valuation — notwithstanding the preference of the parties.
The negotiated settlement was done during the dying days of President Mwai Kibaki’s government and amid the frenzy of campaigns between Uhuru Kenyatta and Raila Odinga and the highly contested March 4, 2013 general elections.
As Kenyans awaited the outcome of the presidential petition filed on 16 March 2013 by Mr Odinga — the negotiated settlement was filed in court on March 22, 2013 following an authorisation made by then Principal Secretary, Ministry of State for Provincial Administration and Internal Security Mr Mutea Iringo.
The first batch of Sh1.4 billion would later be paid to Afrison — and not to the bank.
“The government should have paid this money to the Deposit Protection Fund or to the Receiver and should have noticed that there was an encumbrance on the land,” a Nairobi lawyer told the Nation.
Besides the glaring errors attributable to the dates on the face of the Judgment, there are other glaring errors that may be gleaned from the judgment.
It is not clear why the issue of limitation of actions was not addressed at all. Section 7 of the Limitation of Actions Act, Cap 22 of the Laws of Kenya bars actions for recovery of land after the end of 12 years from the date of accrual of the right of action.
But this suit was brought to Court in 2012, 24 years after the government took adverse possession of the suit property.