In kenya, a thief is awarded 4billion by high court; Pattni’s new Sh4bn scandal

 

 

Kamlesh Patni at a Milimani Law Court during a mention of a case he is charged with conspiracy to defraud the state over Goldenberg saga on March 29, 2012. Justice Mutava of the High Court, blocked the Director of Public Prosecution from Pattni for crimes arising from his dealings with the Central Bank over the Grand Regency hotel, sold off to Libyans and now trading as Laico Regency.

Controversial businessman Kamlesh Pattni is set to pocket Sh4.2 billion worth of taxpayers’ money if the High Court upholds a hefty award issued in his favour by an arbitrator.

Retired Ghanaian judge Edward Torgbor ordered the Kenya Airports Authority (KAA) to pay the Kenya Duty Free (KDF) Complex associated with Mr Pattni the amount as part of a long running battle with the airports authority.

If the court upholds the award, it will mean more billions of shillings will be paid to the same man who was at the heart of the multi-billion shilling Goldenberg scandal and who the Bosire commission of inquiry described as a notorious “perjurer, forger, fraudster and a thief”.   

At the heart of the case is a claim by the World Duty Free (WDF) Ltd – trading as Kenya Duty Free Complex – that it was awarded the sole exclusive rights to run and manage the duty-free shops at Jomo Kenyatta International Airport in Nairobi and Mombasa’s Moi International Airport.

An international tribunal later ruled that the award was obtained through corruption and bribery and should not be respected.

But Mr Pattni and WDF have aggressively pursued their right to hold those exclusive rights.

Justice Torgbor ruled in favour of WDF on December 5, 2012 and gave KAA two months to pay Mr Pattni Sh4.2 billion in full. He also allowed the controversial businessman to charge interest at court rates from the date of the first default on the outstanding amount.

“For the acts of brutality and wanton destruction committed by KAA and its servants by the invasion of the claimant’s (WDF) contractual rights, forcibly breaking into the shops and needlessly pilfering, looting and destroying the goods and stocks in trade from which profits were paid to the authority, I order an award of Sh4.2 billion,” ruled Mr Torgbor.

However, the KAA through lawyer Fred Ngatia, has challenged the award and the arbitrator’s entire findings before Justice Jonathan Havelock and has since obtained interim orders stopping the payments until the dispute is heard and determined.

“I have noted with sadness and disbelief that the arbitrator proceeded to hear a very significant part of the proceedings in the absence of KAA’s advocates or representatives and without informing the management of KAA,” said Justice Havelock.

In his ruling, the arbitrator concluded that the acts by KAA against Mr Pattni’s company were unwarranted and amounted to aggravated conduct “for which KAA is answerable in aggravated damages”.

But in an application seeking to set aside the award in its entirety, the KAA argues that the agreement between it and WDF which formed the basis of the arbitral proceedings was procured through bribery and corruption and “is thus not valid or enforceable under the laws of Kenya”.

Further, the authority through an affidavit sworn by its managing director Stephen Gichuki, claims the arbitration was conducted in a manner that deprived the airports operator of fair and reasonable opportunity to ventilate its case.

Mr Gichuki said the award sought to interfere with the development of air transport facilities in Kenya on the basis of a contract procured through bribery and corruption. He insists the award is contrary to public policy, justice and morality.

“None of the impugned findings and declarations in the award is severable from the other as the entire substratum of the subject matter is founded on a corrupt bargain to extract an illegal and improper benefit from public funds,” argues Mr Gichuki.

At the centre of the dispute is an advertising concession and permission to operate duty-free shops granted by the KAA to third parties, without consultation.

Mr Pattni accused the KAA of unlawfully contravening and grossly breaching his company’s sole and exclusive rights to construct, maintain, furnish and commercially operate duty-free shops by granting the concessions to third parties at JKIA other than Diplomatic Duty Free Ltd, also associated with Mr Pattni.