A city lawyer at the centre of multi-billion shillings worth commercial dispute pitting a local businessmen and a representative of a prince of the Kingdom of Saudi Arabia has protested the move by the DPP to recall a file for review in a move that is seen to be a response to negative media publications.
In the protest letter addressed to the Director of Public Prosecution(DPP) lawyer Robinson Kigen says there have been media publications whose aim is to influence the DPP’s office to vary his decision to drop the intend charges.
“We have decided to write to you this letter to enable you look at the actual picture of the issue as you review the file. We understand through the media reports that a favourable decision was arrived at on March, 2018,” Kigen says.
Gist of the matter
The lawyer states that the Office of the Director of Public Prosecutions should not be subject to any influence,directives or control from any quarter.
Kigen and his client Nuh Abdulwahab Mohammed were being investigated over allegations that they were involved in a scheme to deprive the Prince of a company, Arafco Agricultural Integration Company Limited, by forging transfer forms of shares.
The gist of the matter is that the parties entered into an Agreement in the year 2010 on how they were to invest through a company known as Arafco Agricultural Integration Company LimitedKigen explains.
“An MOU and an Agreement was executed by the parties. Our client was to secure land, which he did, while the alleged representative of the Prince one, Hassan Babakar Osman, was to refund monies a sum of 300,000 USD to the local investor and to invest a further sum of USD 216M to build a sugar plant,” Kigen says.
Osman who is the complainant in the file under review, had alleged to have been appointed by his Royal Highness Sultan Bin Nasser Bin Abdul Aziz Al Saud vide power of attorney IP/A 55800/1 dated February 24 2011.
According to the media, Kigen is alleged to have used ATPU and politicians to frustrate the complainant but he says he actually filed a petition to stop the DPP from arresting him and got conservatory orders pending hearing and determination of petition.
“Contrary to the media reports that I am a majority shareholder of Millestone Developers Limited, I am not. I have never owned any share in any company related with our client,” the lawyer adds.
The media also reported that the row between the parties has delayed investment of the Prince.
Professional legal services
Kigen says his involvement in the whole transaction was “purely to offer professional legal services and contrary to the media reports that shares of the land was transferred to Millestone Developers Limited, that is not so.”
“You will note that Hassan Babakar Osman has been in possession of the land, whose initial lease payments and fees payments were made by our client, from the year 2010 to the year 2015 and he never initiated any development. The Prince has never purchased any land which any party has attempted to defraud at all,” Kigen adds.
According to him statements of various witnesses in the inquiry file clearly exonerate him. He says Mohamedulamin Mohamud, Mohamed Hirei Bare Ahmed, Noor Ahmed Noor and others clearly exonerated him from criminal involvement.
Kigen states that Nuh Abdulwahab secured a land known as Galana Ranch/Block 1/1 and duly paid for rent from his pocket, legal fees and lease registration charges from his pocket.
“The main title for the Lease signed in 2010 expired and a fresh lease was executed in 2012 by our client,” he says and has attached an RTGS slip of Kshs. 2,000,000 paid by his client.
According to Kigen it was agreed by the parties that if a representative of the Prince, Hassan Babakar Osman defaulted in building the plant then shares were to be transferred back our client.
To safeguard parties from the breach, the lawyer says that Osman presented to Abdulwahab a signed transfer of shares, letter of resignation and an affidavit of resignation of 2011 and other documents on the afternoon of 3rdAugust,2010.
Several witnesses who have recorded statements confirm this.
Term of the bargain
However Osman on behalf of the Prince “never honoured his term of the bargain.”
“This prompted the local investor to change share ownership of the company. Clause 5 of the Agreement and MOU of 2010 clearly provided that if Hassan failed to meet his obligations then he was to lose interest in land and the interest in land shall vest on our client,” Kigen explains.
The money for investment was to be wired through the company account which was opened by both the local investor and the foreign investor in the year 2010.
The aggrieved lawyer adds that the company accounts, which are both Dollar and Kenya Shillings Accounts at Equity, Account No Account Number 0810296439340, Equity Centre Branch where Osman is a signatory reads Nil.
“Osman never deposited even a cent since opening in the year 2010. The company also had a debt with ADC, the Landlord, which has given the Company a Lease. There was an outstanding rent arrears of over Kshs. 14 Million as at 2014,”Kigen states.
Further, the lawyer notes that his client has been paying for rent and has an RTGS slip for the year 2013 for payment of rent to the landlord of Kshs. 2,900,000/= as proof.
After it emerged that Osman has been in possession of the company’s leased land and transacting through his personal account in 2015, his client went to court to restrain him from interfering with the said land.
The Court at Malindi delivered a Ruling on 13th May, 2016 restraining Hassan Babakar Osman from interfering with the property.
When the Injunction was issued, Hassan Babakar Osman was dissatisfied and exercised his right to lodge an Appeal at Malindi Court of Appeal. He filed Civil Application No. 34 of 2016 [UR 25/2016], he later abandoned that application when he realized his application was weak and filed Civil Appeal No. 48 of 2016.
Malindi Court of Appeal delivered a Judgement on 10th March, 2017 and the Court dismissed Osman’s application with costs which he is yet to pay, prompting the lawyer to file a Bill of Costs for taxation.
“Our clients lodged a complaint against Osman on 23rd March, 2016, 5th April, 2016 and 15th June, 2016 when it emerged that Hassan has accused our client alongside the lawyer of forging transfer documents, among others, yet it was him who presented the documents he purports to be fake to our client in the presence of many eye witnesses who have since recorded statements,” Kigen reiterates.
Kigen says the witnesses gave a clear account of how the complainant presented to the local partner the documents Osman now claims to be fake.
No evidence of investment
According to the lawyer no investigation has been conducted in line with their client’s complaint to investigate Hassan Babakar Osman for presenting documents to us he now terms fake to date.
Instead our client’s letter of complaint was shared with Osman who produced the same through a Replying Affidavit of 6th April, 2016 in ELC No. 218 of 2015. This is a clear demonstration of bias and lack of impartiality by the investigating agencies.
“Further without getting reasons for refusal to act on our client’s complaint, a decision was made by your office through a letter dated 12th August, 2016 to prosecute our client and the undersigned,” Kigen said.
Kigen said Osman is known to peddle falsehoods, he told Malindi Court that he had invested millions of dollars in the land, the court discounted that allegation and wondered “how one can invest such amounts whereas he is unable to pay outstanding rent of Ksh14 million as at 2014.”
In the ruling, the court further found that there was no evidence of such investment as purported by Osman.