The fake Milan court order and tussle for Malindi hotel

When he reigned, Italian tourism investor Bruno Colombo had built a solid empire — I Viaggi del Ventaglio — well-known for organised tours and several tourist villages worldwide.

One of them was Temple Point Resort Watamu — which is the focus of my story this week.

In its heyday, I Viaggi del Ventaglio was the second largest tour operator in Italy and Malindi became a haven of Italian tourists, thanks to a 1963 decree by Jomo Kenyatta that allowed the town to be the base of Italian space research.

For starters, Malindi has since 1960s hosted Luigi Broglio Space Centre, an offshore satellite launch platform known as San Marco and which stands on a discarded oil platform.

There is also a ground communication centre at Ras Ngomeni village.

SPACE CENTRE
The origin of this space centre was US President John F. Kennedy’s 1961 commitment of landing a man on the moon by the end of the decade.

While the space race, as it was known, was between the Americans and the Soviet Union, the latter enticed the Italians to become the fourth nation — after the United States, the Soviet Union and Canada, to launch an object into space.

It was agreed that Malindi would be the appropriate place and that is how the coastal town was turned into a small Italy.

To cut a long story short, research facilities were built and Italians were drawn to Malindi for both overt and covert activities — and investors built villas and hotels for them as Prof Luigi Broglio — the leader of the project — continued to fight back at home to sustain it.

Finally, the San Marco-Scout project was cancelled by an Italian inter-ministerial committee after a meeting on January 29, 1981.

But the Italians never left the Kenyan coast; Malindi had become their second home in the tropics.

DEBTS
Bruno Colombo was one of the investors who had interests in Malindi and had bought the Salama Beach Hotel from an Asian family.

It was previously owned by Mrs Violet Cottington, who in the 1960s ran Nairobi’s Cottington Hotel before she sold her interests to Impala Hotel.

In the shareholding structure, some 40,000 paid up shares of Salama Beach were held by a Kenyan, Isaac Rodrot, previously known as Isaac Mwaura, as the sole agent for Ventaglio while 9,000 shares were held by Abacus Service Limited whose directors were Enrico Poma, Stefano Uccelli and Marion Scotti Camuzzi.

All was going well and Bruno Colombo had together with a former Formula 1 ace Niki Lauda, popularly known as King Rat, launched a charter airline company in 2003.

He then listed his company at the Milan Stock Exchange and began a series of transactions and debts which would later bring down the company.

COURT CASES
As creditors instituted court cases, the Malindi property became one of the targets and that is how this tourist resort got caught up in the Italian mess.

What the Kenyan court had been told was that an Italian company known as Adinos A.G had sued Bruno Colombo’s I Viaggi del Ventaglio and was awarded 825,000 Euros (Sh100 million).

But this company did not recover the awarded sum and instead it ceded the decree to Accredo AG, a company owned by a German couple, Hans-Jürgen Langer and his wife Zahra Langer.

The main reason for the ceding of the debt was that Adinos owed Accredo some money and it was given the go-ahead to recover the same.

But Accredo AG realised that Viaggi was bankrupt and, apart from the Malindi hotel, it had no other property.

OWNERSHIP
Armed with what looked like a decree from a Milan Court, both Hans-Jürgen and his wife arrived at the Malindi court and filed a case in 2009 — seeking to enforce the Italian court order and seeking “to take over the ownership, management, running, operation and control of (Salama Beach Hotel) for such period and time as shall be sufficient to satisfy the judgment and decree of the court of Milan dated December 14, 2001”.

Filed in the Malindi court by both Hans-Jürgen and Zahra Langer was the judgment of the Milan court.

But was there such a decree? We shall find out shortly.

When the matter was taken before Justice Mohamed Ibrahim in January 2010, it was decreed “by consent” of two law firms, Gunga Mwinga and Co (for Eccredo) and Fadhil and Kilonzo Co (for Salama) that the judgement of the court of Milan be enforced.

The consent allowed Hans-Jürgen and Zahra Langer to take over the shareholding, directorship, ownership and management of the hotel. As such, the Malindi hotel changed hands.

MILAN JUDGMENT
Interestingly, it was one of Salama Beach Hotel Limited directors, Stephano Uccelli, who swore an affidavit saying the company does not object to the takeover and that “Adinos AG is truly and justly indebted to I Viaggi del Ventaglio and that Eccredo is the lawful assignee of the judgment passed in favour of Adinos AG”.

But four years after that decree, Mr Uccelli returned to court asking that the decree be set aside and the matter be heard as his “signature was procured through misapprehension of facts on his part, caused by fraud, coercion and deceit” perpetrated by Hans-Jürgen.

He also told the court that he had no authority to sign the consent on behalf of other shareholders and as such “the consent lacked legitimacy”.

And then came the shocker: “The Milan judgment, upon which the orders were based, was non-existent and a fallacy and that even if such judgment existed, the enforcement thereof was premature…”

When this matter was heard before Justice Said Chitembwe, it exposed the underhand dealings that had seen a Malindi property change hands.

FAKE COURT ORDER
Ruling on April 30, 2015, Justice Chitembwe set aside the decree, and ordered the Registrar of Companies to remove the names of Hans-Jürgen and Zahra as directors of Salama Beach Limited and ensure that the status of the company in its registry is restored to the position as at December 14, 2009.

The couple was ordered to hand over all the properties belonging to Salama Beach Hotel Ltd within seven days.

READ: Investors blocked from taking over resort in row

He had apparently found that the Malindi hotel had been taken over “through fraud and mistake” and that there was no decree from a Milan court and that the consent in question was procured through threats, intimidation and fraud.

How a fictitious Milan judgment found its way to a Malindi court intrigued the judges too.

An Italian lawyer Taglioretti Farese Cicerchia Capua, who dug up the details, found that the said judgment was a creation of Hans-Jürgen’s company and that “the case number indicated on the appellants’ purported judgment pertained to unconcluded proceedings”.

LEGAL FEES
The court was also told that Hans-Jürgen’s company had “slyly and fraudulently purported that there were such orders in force, so that he can unlawfully execute the same to his benefit, thereby illegally taking over the operations and ownership” of the Malindi hotel.

The facts that emerged were that a Milan court had ordered Viaggi to pay Accredo a sum of €825,000 in respect of legal fees and going expenses pending the hearing of a suit.

But this order was later overturned and the company was ordered to return €412,500 euros that had been paid.

That matter was still pending in an Italian court by the time Hans-Jürgen was in Kenya executing a Milan order — while knowing that the decretal sum under the purported Milan proceedings was still uncertain.

GOVERNOR SONKO
Interestingly, and the Court of Appeal said as much, the “appellants never controverted these claims as to the existence or validity of the Milan judgment.

“It is therefore without doubt that at all material times to the High Court proceedings, there was no order or decree from the court of Milan in favour of Viaggi capable of enforcement; given the proceedings pending before the Italian courts and the lack of clarity as to the decretal sum.

“Equally clear from all this is that Viaggi could not assign Hans-Jurgen’s company a non-existent decree.”

And then there is a political angle: In January, Senior Counsel Ahmednasir Abdullahi dragged Nairobi Governor Mike Mbuvi Sonko into the case, accusing the governor of conspiring to defraud the German couple of the luxurious hotel valued at about Sh1 billion.