Retired President Moi wins appeal against former chief spy

By Wahome Thuku

Kenya: The Court of Appeal has overturned an award of more than Sh130 million made against retired President Daniel Arap Moi.

The court also rejected a claim of more than Sh1 billion made against the former head of state by former intelligence boss Stephen Mwangi Muriithi for unlawful dtention. Three Court of Appeal judges set aside the award of Sh50 million granted to Mwangi for the detention and another award of Sh80.1 million for financial loss.

Mwangi had initially demanded that Moi pays him Sh1 billion as compensation for detaining him and Sh80 million for causing him financial losses.

But the Court of Appeal allowed the appeal by Moi, holding that he was not personally responsible for Mwangi’s detention, which was an action of the State. The former detainee had also failed to prove the losses he claimed to have suffered when in detention.

Mwangi had been awarded the damages by the High Court in April 2011 for losses he said he suffered following his detention without trial in July 1982. He had also claimed to have lost properties which he jointly owned with the former President and two other people.

Mwangi sued Moi in October 2009, alleging he had detained him without trial purposely to take over the joint properties.

He claimed that he jointly owned three companies with Moi, former head of intelligence, the late James Kanyotu and businessman Sadru Alibhai.

The companies, which Mwangi alleged to own majority shares were Fourway Investments, Sheraton Holdings and Mokamu Ltd.

He claimed that Fourways and Sheraton owned parcels of land in Nairobi central business district while Mokamu owned land in Solai, Nakuru. The plots in Nairobi hold Fourways Towers, Corner House, Atlas Building, Norwich Union House and Kenwood House.

At the High Court, he argued through his lawyer, Paul Mwangi, that Moi detained him without trial in 1982 and sold off the properties, hence denying him his right to the properties. He said he had suffered losses as a result.

He sought orders that the detention was illegal and unconstitutional, and that the sale of the properties was illegal.

Mwangi tabulated the financial loses as Sh80.1 million and also sought a sum of Sh1 billion as punitive damages.

Moi, through his lawyer, Ochieng Oduol, had filed an objection questioning the legal authority of the court to hear and determine the case. The High Court, however, ruled that it had such mandate under the constitution.

The court ruled that the claim was a constitutional matter and not a commercial one as Moi had insisted. Justice Jeanne Gacheche held that the detention led to the loss of property. The High Court had awarded him Sh50 million as punitive damages for denial of fundamental rights, which it said had led to financial and economic losses. It had also awarded him Sh80.1 million as his shares in the properties. Further the judge had awarded him interest on the awards at the rate of 12 per cent with effect from July 1, 1982, plus costs of the suit.

Wholly in error

In Moi’s appeal, lawyer Oduol argued that the detention under the former constitution was lawful and

could only be challenged by presenting a case before a special tribunal and not at the High Court. He argued that the claim was a commercial matter different from the constitutional case. The properties belonged to the companies and Mwangi could not sue on their behalf.

Oduol submitted that detentions were under the Home Affairs Ministry and Moi did not owe the former detainee personal protection of rights.

Further Oduol said Mwangi had not stated the exact provisions of the constitution that had been breached through the detention. He submitted that the detention was executed by the State, hence it was not an individual act of the former president.

The lawyer told the judges that there was no evidence in the High Court that the three companies had been incorporated.

Another company, Raymark Ltd, was then enjoined in the suit as an interested party as it claimed to own the land in Solai. Lawyer Moses Kurgat for Raymark argued that the land in Solai belonged to his client yet the High Court had included it as part of the properties Mwangi had lost. The land had never been owned by Mokamu Ltd, he said, adding that his client was wrongly and unfairly condemned by the High Court.

Mwangi maintained that detention what only lawful when Kenya was at war and that was not the situation when he was detained. He said the detention was intended to take away his properties.

Yesterday the three judges of Appeal, John Mwera, Daniel Musinga and William Ouko, held that the High Court had legal mandate to hear the case. The judges also held that in law, the detention remained lawful under the old constitution.

“The detention order was issued by the Minister in Charge of Internal Affairs and not the President himself. It was an act of State,” they observed. “It was not the appellant as President who detained the 1st respondent as the learned judge found,” they ruled.

The judges said the validity of a detention had already been determined in an earlier case hence the issue could not be re-opened. They held that the High Court had no authority to make a declaration that Mwangi’s constitutional rights had been violated.

The Court of Appeal ruled that Mwangi as a shareholder in the companies had no ownership or right to the properties held by the firms, as these are separate and distinct legal entities.

“He could thus not sue about the loss of the properties of the companies, but could claim his shares in the firms,” they said.

The judges said Mwangi did not produce any documents to prove that he held shares in the companies, and he never produced any papers to prove that the companies owned the properties he quoted in his suit.

The former detainee had also not proved that the land in Solai belonged to Mokamu Ltd, they said. “The judge simply lifted the figure of Sh80,161,720 from the submissions and awarded it. This was wholly in error. Submissions can’t take the place of evidence. The 1st respondent had failed to prove his case by evidence.”

The judges said they could not establish how the High Court judge arrived at Sh50 million as punitive damages. “We are unable to fathom where the award of interest on a compound base came from or what purpose it was to serve,” they noted.