Swiss firm seek to be enjoined in hotel dispute case

 

A Swiss-registered company involved in a dispute over a multimillion-shilling resort in Kilifi County wants to be enjoined in a case related to the sale of the property.

The case involves lawyer Titus Otieno Koceyo, who has obtained temporary orders stopping his arrest and prosecution over the sale of the property and two cases related to the transaction.

Beloilco Holdings Ltd also wants the orders stopping law enforcement officers from arresting, charging and prosecuting Mr Koceyo to be suspended.

It wants the orders suspended pending the determination of its application, which also seeks to have the petition filed by Mr Koceyo against law enforcement struck out.

Beloilco Holdings says the temporary orders issued contradict others given by the Environment and Land Court (ELC) in Malindi three years ago.

Those orders, the company says, had directed the Director of Criminal Investigations and the police to look into possible fraud, forgery and perjury committed in the Malindi case.

The High Court, the company argues, has no jurisdiction to sit on appeal, set aside, vary or review the orders and decisions of the land court.

“This court was tricked and fraudulently misled into interfering with orders of the ELC, it acted innocently and would not have granted those orders or entertained the petition if Mr Koceyo had disclosed the orders given in Malindi,” Beloilco Holdings states.

The company also argues that the law enforcement agencies were not acting on their own motion but were instead complying with and enforcing the orders of the ELC.

“By innocently restraining the respondents (DPP, DCI and IG) from discharging their constitutional and statutory mandate upon the orders of a court of equal status, this court has placed them in the most embarrassing position of dealing with two conflicting orders of two judges exercising separate jurisdictions,” the company argues.

Beloilco Holdings says it is a defendant in the High Court and ELC cases in Mombasa and Malindi, respectively, and therefore a victim of fraud in those cases ought to be enjoined in the case filed by Mr Koceyo and has a right to be heard.

“Beloilco Holdings Ltd is a victim of multiple offences committed by the petitioner and others in the High Court and the ELC cases, in that capacity, it has the right to participate in all criminal proceedings against all accused persons,” the company states.

The interim orders issued in favour of Mr Koceyo should not have been made without hearing the victim and should not to be maintained, the company argues.

Justice Eric Ogola stopped the Inspector-General of police, the public prosecutor and the Directorate of Criminal Investigations from arresting Mr Koceyo pending the determination of his application for conservatory orders.

In his petition, Mr Koceyo says the IG, DPP and DCI allege that documents used to file the petition in Malindi were forged yet the only document he filed was a notice of change of advocates.

“At no time has the petitioner been asked to give his handwriting to be compared with any other document filed in court other than his notice of change of advocates,” Mr Koceyo argues.

The lawyer says that when the purchaser of the property was charged, IG and DCI officers started calling him to present himself to be charged yet he has never been informed of any criminal investigations against him in order to present his side of the story.

Mr Koceyo says if he is arraigned on trumped-up charges meant to achieve ulterior motives, this will irreparably tarnish his reputation and the goodwill he has earned.

“The sale of the property by public auction was done through an auctioneer and was in realisation of a court decree and cannot amount to a conspiracy to defraud a judgment debtor,” says Mr Koceyo.

He argues that the respondents’ demands that he be charged for rendering a legal service violates his right to liberty and to his economic rights to earn an honest living by practising his trade.

The lawyer says that the intended prosecution is not founded on any legal justification, is oppressive, contrary to public policy and unreasonable as it intends to achieve ulterior motives by punishing him for a lawful transaction.

Mr Koceyo wants a permanent injunction issued to restrain the respondents from arresting, confining, charging and prosecuting him in relation to the two cases and the sale and transfer of the property.

The lawyer also wants the court to issue a declaration that the respondents have breached his rights and charging him with a criminal offence would be a continuation of the abuse of his constitutional rights.

The case will be heard on July 5.    BY DAILY NATION