Court Allows Dusit Complex Auctioning

The sale of a contested property in Nairobi will proceed after high court issued the greenlight.

High Court Judge Alfred Mabeya allowed Synergy Industrial Credit to auction a complex also claimed by I & M Bank, which had sought to stop the process.

“In the view of the foregoing, i am satisfied that the applicant has made a strong case for the grant of leave sought. Accordingly, i find the application dated October 22,2021 to be merited and the same is hereby allowed. The applicant is granted leave in terms of prayers (2) and (3)of the application. It is so ordered”, ruled Judge Mabeya.

Justice Mabeya said the charge placed by the lender was a ploy by Cape Holdings to enable it evade its legal obligations.

This is after Synergy filed application seeking orders to be allowed to proceed with execution against cape holding ltd.

Because the amount required is HUGE I suggest that prospective purchasers with REAL MONEY…I MEAN REAL MONEY organise their finances…and GET READY…

— Ahmednasir Abdullahi SC (@ahmednasirlaw) December 13, 2021

Synergy, has been in court since 2010 arguing that Cape Holdings, which owns the building, has been unable to settle a Sh5 billion debt.

I & M Bank wanted the auction stopped because it is also owed money by the same firm.

The dispute between the parties emanate from the sale of L.R No. 209/19436 (I.R 120877) “the suit property”.

The dispute arose when Synergy paid Sh750 million to acquire part of the apartments but the deal fell through and the matter was referred to an arbitrator.

The debt has since ballooned to Sh4.5 billion plus interest. The Judge said in a ruling that it was not necessary for Synergy, through senior Counsel Ahmednasir Abdullahi, to seek the administrator’s consent to auction the property.

Court added that Synergy had placed a caveat through a court order in 2011, warning over the property. “With such a caveat, that property was not free to be given as a security,” he said.

The dispute revolved around a transaction where Synergy bought two of the blocks out of 14 which were under construction and paid Ksh750 million upfront. When the property was completed, Cape Holdings refused to transfer the property and the matter was referred to arbitration.In 2015, the arbitrator, Ochieng Oduol ordered the developer to refund the principal amount and interest totaling Sh1.66 billion.

Cape Holdings then moved to the High Court and convinced the court to quash the award, saying it was erroneous.

Synergy then moved to the Court of Appeal and the award was restored while attempts by Cape Holdings to move to the Supreme Court and reverse the decision was dismissed by the apex court.

In a ruling delivered on October 8, the Supreme Court held that it will not interfere with the judgment of the Court of appeal that upheld the award on grounds of jurisdiction.