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High Court judge Alfred Mabeya yesterday declined to recuse himself from handling a decade-long court battle on the ownership of a property on 14 Riverside Drive in Westlands, Nairobi.

While dismissing a request by Cape Holdings, the owners of 14 Riverside Drive to have him disqualified from handling the case, Mabeya said the firm did not advance convincing grounds to prove allegations of bias against him.

“This court is fully impartial and has no predetermined mind. It will deal with the matter dispassionately and uphold the rule of law. The allegations that the applicant would not be accorded a fair hearing have no basis. The prayer for recusal is dismissed,” ruled Justice Mabeya. 

 Disregarded the law

The recusal application for the Judge was on the basis that in December last year, he paved way for Synergy Industrial Credit which had acquired part of the 14 Riverside Drive complex to auction the same.

Immediately after the order was issued, the property was put up for auction early in January by Moran Auctioneers over a debt of Sh5 billion.

The firm, however, moved to court and sought the recusal of the judge on grounds that he disregarded the law when he granted the auction orders which demonstrated actual bias and prejudice against it.

“On December 10, 2021, you (Justice Mabeya) made the adverse pronouncement in the said ruling against the debenture holder and attacked the true intent of the administration,” the firm stated. 

It further argued that the decision to an auction the property is a subject of various appeals and believes that the proceeds are already prejudiced against it and the debenture holders. 

The company had also sought to stay the proceedings pending appeal which the judge also declined. 

“Stay of proceedings is an order to be made at the discretion of the court where circumstances permit. With case backlog in our courts, it is unwise to encourage the culture of packing cases in court. Once an order of stay is made, the case remains in limbo until an appeal is determined,” Justice Mabeya said. 

In his ruling, Justice Mabeya gave Synergy Industrial Credit which had acquired part of the property the go-ahead to auction the complex after dismissing an application by I&M bank and its administrator to stall the sale over a Sh2.82 billion shilling debt.

The judge dismissed the bank’s application and insisted that it would not suffer prejudice since it had other securities. He noted that stopping the sale would leave Synergy with irreparable losses due to delayed recovery of their money.

Synergy had paid a total of Sh750 million for part of the 14 Riverside Drive apartments but the deal went sideways when it withdrew from the agreement and demanded a refund of the cash that had been paid.

The matter was referred to an arbitrator in 2012 against Cape Holding’s resolve to amicably settle the matter outside the court.

This kicked off one of the longest arbitrations in Kenya. The arbitrator, James Ochieng Oduol, awarded Synergy a sum of 1.67 billion shillings in 2015 that has, since then hit 4.9 billion shillings (compounded at 18 per cent). The Arbitrator awarded the damages in interest, opportunity cost, and foreign exchange.

After the dismissal, the bank moved to the Court of Appeal with a view of stopping the sale, pending the hearing of its appeal.

I&M wanted the court to determine who, between the debenture holder and the decree-holder had the priority attached to the attached property.

It argued that if the sale went through, it would jeopardize its plans to recover the debt it was owed.

Appellant Judges Daniel Musinga, Wanjiru Karanja, and Agnes Murgor put on hold the planned auction of the property