The High Court has allowed the auction and transfer of former Cabinet Secretary Raphael Tuju Dari Business Park to stand, while temporarily stopping any sale or interference with the Entim Sidai Wellness Sanctuary property pending an intended appeal.
In a ruling delivered on Thursday, the court granted a partial stay of execution in the long-running dispute involving Tuju, several banks and other parties over charged properties.
The judge ruled that the application before the court was not barred by the doctrine of res judicata despite previous litigation before the High Court, Court of Appeal and Supreme Court.
“Accordingly, the court finds and holds that the application is not res judicata,” the judge said.
The court also rejected arguments by the respondents that the application was fatally defective for being filed under the wrong provisions of the law.
“However, the mere citation of incorrect provision of the law or failure to cite the appropriate provision does not of itself render an application incompetent where the court is otherwise properly seized of jurisdiction,” the judge ruled.
On whether the March 9 ruling could be stayed, the court found that although striking out a suit is ordinarily considered a negative order incapable of stay, the circumstances of this case were different because the earlier decision also vacated injunctions protecting the properties.
“The affidavits… confirm that enforcement actions and altercations followed within hours of the ruling. These are obviously executory consequences of the ruling, which in the view of this court are capable of being stayed,” the judge stated.
However, the court drew a distinction between the two disputed properties.
The judge found that Dari Business Park, identified in court as LR No. 1055/165 Tamarind Karen Business Park, had already been sold through a public auction and transferred to the 10th defendant.
“In respect of that property, the applicant’s equity of redemption was extinguished upon the fall of the hammer,” the court ruled.
The judge added that once a charged property is sold through a completed auction, the law only allows an aggrieved party to pursue damages.
“Accordingly, no substantial loss has been demonstrated in respect of that property,” the ruling stated.
But the court found that the Entim Sidai Wellness Sanctuary property, identified as LR No. 11320/3, had not yet been sold and required preservation pending appeal.
“In respect of that property, there exists a real risk that absent preservatory orders, the respondents may proceed to realize the security before the intended appeal is heard,” the judge said.
The court consequently issued temporary stay orders preserving the property pending the determination of the intended appeal.
As part of the conditions, the court ordered Tuju to deposit Ksh50 million in a joint interest-earning account within 30 days.
“The plaintiff within 30 days [shall] deposit security in the sum of 50 million in an interest-earning joint account in the names of counsel for the parties, failing which the stay order shall automatically lapse,” the judge directed.
The court further ordered the plaintiff to file and serve the record of appeal within 60 days, failure to which the temporary protection orders will also lapse automatically.
