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Three Asian businessmen Rajesh Pabari, Kaushik Pabari and Harshil Kotecha, who are directors of Kwale International Sugar Company Limited, are allegedly funding DP William Ruto for the August election.
The Kiscol directors, if Ruto wins, want to be paid Sh32 billion in special damages awarded by court after they sued the state. The Asians moved to a court in Mombasa seeking compensation. The AG is now out to set aside a preliminary judgment compelling the government to pay the firm Sh32 billion in special damages.
Kiscol sued cabinet secretary National Treasury and the AG, is seeking special damages for breach of statutory and contractual duties over its lease of 15,000 acres of land for sugarcane farming. But the AG did not respond in time forcing the court to award Kiscol its prayers against the government in an interlocutory judgment. In his application seeking to set aside the judgment, the AG also wants to have his memorandum of appearance and statement of defence be deemed as duly filed and served hence properly on record.
According to the AG, Kiscol did not seek leave before entering judgment as required in the Civil Procedure Rules hence it (judgment) was unprocedural.
According to the AG, he wrote a letter to the CS National Treasury seeking instructions regarding the allegations by Kiscol in its case and also prepared a memorandum of appearance which was mistakenly filed in Kwale court instead of Mombasa.
The AG said that upon realising the error, he prepared another memorandum of appearance dated May 31 filed on the same day and that during filing it was discovered that Kiscol had requested for the interlocutory judgment.
In court papers, Kiscol argues, it has set up its Greenfield sugar manufacturing plant on the parcel of land within Kwale county and holds a sublease dated August 20 2007 between itself and the government.
It accuses the government of failing to provide it with “full, unhindered and peaceful possession” of the leased area.
The company says efforts to access the land to implement its project has met resistance from squatters who assert equitable rights to occupy portions of the leased area.
According to Kiscol, the squatters have occupied the leased land of approximately 5,816 acres in a various regions seven areas.
“The plaintiff’s efforts to access portions of the leased land occupied by the squatters were frustrated by a court order,” says Kiscol adding that it managed to have the order set aside on March 13 2018, before a petition by the squatters was dismissed in January this year.
The sugar miller argues that it was an express and implied term of the sublease between the plaintiff and the CS National Treasury that it would have full, unhindered and peaceful possession of the land. Kiscol in court documents says that at the inception of the project and granting of the sublease, it had been made known to the government that the Greenfield project was modelled and designed around the availability of land and unhindered access to it.
It also argues that in breach of the legitimate expectation created by the defendants, it has not been able to access the entire leased area and has accessed approximately 50pc of the leased land.
Kiscol claims to have so far invested USD 300 million in the project but the investment cannot yield the projected results because the project is not operating optimally, in fact, the plaintiff is now forced to go into a second restructuring exercise with syndicated lenders.
To play games, at one time the directors colluded with one firm to place it under receivership as the case was proceeding to gain sympathy and upscale the court case.
The company won permit to invest in sugar production in Kwale county. Infact, Kiscol’s move to invest in Kwale project was not aimed at producing local sugar but to use the licence of production to be allocated a percentage located to local industries to import sugar.
Ever since Kiscol was given a green light to produce sugar in Kwale, not much has been achieved with workers going without pay.
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