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Daily Nation : February 9th 2014
SUNDAY NATION February 9, 2014 COURTS | February 2012 ruling granted bank the right to sell building by private treaty Tycoon fights to save contentious building Plaintiff contesting sale of property to Cape Suppliers for breach of contract BY BENSON WAMBUGU email@example.com pute between a bank, a city tycoon and an oil company. Mr Raj Harish Devani lost an A earlier court battle to save the Shimmers Plaza building in the heart of Westlands in Nairobi from being auctioned by the National Bank of Kenya (NBK) over an accumulated debt of Sh655 million. But the sale of the building to BY WRITER’S NAME @Twitter Names here xyxyxyxyx Cape Suppliers, an oil marketer, for Sh400 million has taken the parties back to court. Shimmers Plaza — a firm associated with Mr Devani — and Cape Suppliers lodged parallel suits in the Environmental Division of the High Court. But on February 3, Lady Justice Mary Gitumbi ordered the two cases consolidated, and referred the dispute to the Commercial Division. Presiding Commercial Judge George Kimondo will issue directions on March 3. Shimmers Plaza is contesting the sale and has accused the bank of unlawfully selling the property in breach of statutory and contractual duties. According to Cape Suppliers, the property was legally transferred to them after they paid NBK Sh400 million they had obtained through a loan from Diamond Trust Bank. But Shimmers Plaza, through lawyer Ochieng’ Oduol, alleges 12-year battle for a multimillion-shilling building has triggered a fresh dis- the lender fraudulently transferred the building to Cape Suppliers on October 30 despite an order by the Court of Appeal on September 26 directing that the status quo be maintained until a pending judgment had been delivered on November 29 last year. The appeal was later dismissed. The chief land registrar has also been brought into the suit, and Shimmers has urged the court to stop the government official from issuing the title deed to Cape Suppliers or alienating the property. Threats and brutal force Shimmers also wants the transaction between NBK and Cape Suppliers nullified and an injunction issued barring the parties from interfering with the property until the dispute is heard and determined. In a counter suit, through lawyer Duncan Okatch, Cape Suppliers says it has been denied access to the five-storey building through the use of threats and brutal force. Lawyer Okatch referred the court to an incident on January 6 when Mr Devani was arrested for allegedly shooting a padlock in an attempt to gain access to the building after he found out the property had been transferred. Following the incident, Mr Devani appeared in court where he denied charges of firing his gun at the premises and endangering lives. He is alleged to have threatened to shoot three Ways sought to end female circumcision BY BENSON WAMBUGU The newly-appointed chair- person of the board fighting female circumcision, Linah Jebii Kilimo, has demanded concrete steps to stop the harmful practice. Mrs Kilimo singled out legislation, public education, advocacy, media coverage, empowerment of women and access to reproductive health as some of the measures that could go a long way in eradicating the illegal cut. Children’s Act She said the Children’s Act empowers the courts to punish those who facilitate or practise female circumcision while the Prohibition of Female Genital Mutilation Act gives impetus to the campaign. She spoke during cel- ebrations to mark the international day against female circumcision on Thursday in Garsen, Tana River County. Mrs Kilimo said the or- ganisation will focus on girls education as well as sensitising mothers, men and boys on issues related to female circumcision. Mrs Kilimo, who repre- sented the Cabinet Secretary for Devolution and Planning, Ms Anne Waiguru, praised the government for demonstrating its commitment to gender equality and women empowerment through establishment of the board, pledging to work with all interested parties to achieve zero tolerance to the practice. “The future of our women and girls depends on our collective action. Let us work together to protect them,” she said. UN secretary-general in a message read on his behalf by Unicef’s child protection specialist Zeinab Ahmed, said that the international day of zero tolerance to female circumcision presented an opportunity to refocus attention on the problem and find ways to end it. I hold the view that when a company mortgages its property, it acknowledges that it can be sold” Justice George Kimondo security guards manning the building. The businessman was released on Sh150,000 cash bail pending the hearing of the case on March 20. In the dispute, Ms Dorcas Wanjiru, a director at Cape Suppliers, says in a sworn affidavit that despite being the legal registered owner of the property, the company was encountering problems accessing the building to carry out renovations and collect rent. She claims Shimmers has been coercing tenants into making rent payments to them, and not the supposed new owners, and urged the court to issue an eviction order to Mr Devani. The long-running dispute be- tween Shimmers and NBK relates to a Sh200 million loan advanced to the company on December 30, 1996 and secured by the principal borrower, Trade Wings, a firm associated with Shimmers. NBK gave a Sh150 million loan, a Sh30 million overdraft, and a local bills discounting facility of Sh20 million over a charge on the property. Court records show the parties agreed, through a letter of offer, that interest on the loan would be pegged at 28 per cent per annum on a monthly basis, while overdraft and discounting bills would attract an interest of 30 per cent over the same period. National News 11 FILE | NATION Shimmers Plaza is at the centre of a dispute between city tycoon Harish Devani, Cape Suppliers and National Bank of Kenya. After Shimmers allegedly de- faulted in repaying, NBK called up its guarantees with the debt having accumulated to Sh655 million owing to interest on the loan, overdraft and discounting bills. Mr Devani moved to court in 2001 after NBK issued a statutory notice to sell the property where he was granted a temporary injunction restraining the lender from auctioning the premises. However, the interim orders were later removed by Justice Kimondo, who observed in his ruling in February 2012 that Shimmers could not continue enjoying the injunctive orders issued for a decade. “I hold the view that when a company mortgages its property, it acknowledges that it can be sold,” ruled Justice Kimondo. Accordingly, the judge allowed the bank to sell the property by private treaty.
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