[missed call]

so is someone investigating what role raila, orengo, ringera and kimunya played in the sale? or at least what they knew?

[missed call]

lets give kimunya a chance, he might reveal more. we already know that raila, ringera, wako, orengo ... all knew very well about the deal. we also have a hint that orengo wanted some money out of this (3m).
am sure given a chance, more revelations are coming on the way.
but lets not have raila in the investigating committee! he should be investigated too.

[mak&emoto]

Originally Posted by Tactician

If what you have written above is true, then I agree CBK would be the owner of GRH. In which case, the purchase and sale agreement would never mention Uhuru Highway Development Limited (UHDL) which is one of Pattni's property.

But look at the sale and purchase agreement below:
http://www.nationmedia.com/dailynati...ment030708.pdf

Read sections A, B and C.

From these sections, it is clear that CBK is the chargee i.e.the one who created a lien on property belonging to the chargor (borrower) UHDL.

If CBK is the owner of the property, why does the sale agreement refer UHDL? If CBK were the owner, the agreement would simply say CBK is the owner of the property and is selling it with no mention of UHDL.

Again, read section A and B again and u shall see that GRH had a charge and was the security on money owed to CBK. Again, its clear that CBK is not the owner.

@Tactician,
This is getting interesting!
First you table as evidence an unsigned draft sale agreement and purport it to be the one that effected the sale of GRH??? Let us get serious.

Now, assuming that it was indeed the one that was effected, look at the transaction consideration of US$ 45 Mn and use your preferred exchange rate, does it tally with the figures being bandied around?

By the time the CBK was selling the GRH, they must have been aware of the consent registered in court which legally gave them ownership of GRH and that this was nolonger a simple case of redeeming a charge. So if the CBK continues to purport that they sold the GRH in redeeming the charge, the sale was illegal.

They sold the hotel as a going concern and they cannont therefore claim that they were simply selling the assets and stock of GRH, this should have been considered in requesting the valuations.

Can you explain why they are not factoring in interest on the amount owed?

The import of this is that GRH cannot hide under the Transfer of Property Act on a charge that does not pursue principle and interest.

- The sale was conducted in secrecy, in disregard of the Law and to the disadvantage of Kenyans,
- Kimunya and his cronies unduly influenced the sale,
- The information availed to the PM on the sale hid material facts,
- The information provided to parliament by Kimunya on the sale was false,
- CBK failed to officially seek legal advice from the AG on the sale,
- CBK disregarded the KACC Director's advice to follow the law in disposing of the hotel.

Verdict: Kimunya is Guilty as hell.

[Tactician]

Originally Posted by mak&emoto

@Tactician,
This is getting interesting!
First you table as evidence an unsigned draft sale agreement and purport it to be the one that effected the sale of GRH??? Let us get serious.

Now, assuming that it was indeed the one that was effected, look at the transaction consideration of US$ 45 Mn and use your preferred exchange rate, does it tally with the figures being bandied around?

By the time the CBK was selling the GRH, they must have been aware of the consent registered in court which legally gave them ownership of GRH and that this was nolonger a simple case of redeeming a charge. So if the CBK continues to purport that they sold the GRH in redeeming the charge, the sale was illegal.

They sold the hotel as a going concern and they cannont therefore claim that they were simply selling the assets and stock of GRH, this should have been considered in requesting the valuations.

Can you explain why they are not factoring in interest on the amount owed?

The import of this is that GRH cannot hide under the Transfer of Property Act on a charge that does not pursue principle and interest.

- The sale was conducted in secrecy, in disregard of the Law and to the disadvantage of Kenyans,
- Kimunya and his cronies unduly influenced the sale,
- The information availed to the PM on the sale hid material facts,
- The information provided to parliament by Kimunya on the sale was false,
- CBK failed to officially seek legal advice from the AG on the sale,
- CBK disregarded the KACC Director's advice to follow the law in disposing of the hotel.

Verdict: Kimunya is Guilty as hell.

First, the agreement comes from the Daily Nation. No one has denied its veracity yet - not even Orengo.

Second, US$45 million at an exchange rate of KShs 65 to the dollar is the equivalent of KShs 2.93 billion. DO the maths.

About the consent, if u know some bit of law, you will realise that CBK was not a party to that consent. The consent was between KACC and Pattni. Check the facts and see. SInce CBK was not a party to it, it could not act on the consent.

About interest on the amount owed i explained it here or somewhere else - lets say you owe a bank KShs 1 million and default. The bank proceeds to put your hotel valued at KShs 2 million under receivership. Through no fault of your own, the bank sells the hotel 10 years after they first put the hotel under receivership.

Will the bank apply intereest on the KSHs 1 million for 10 years? Of course not! Its not your fault that they did not sell the hotel. That's why banks ask for security worth in excess of the loan advanced to a borrower - otherwise, the bank would sell your hotel and then tell u that u still owe them money based on compounded interest!

About the charge - it was on the land and building/equipment. If the owner buyer decides to strip it and have a wheat farm there, that's upto him.

Finally, Kimunya has said that Wako, Ringera, Raila were all aware of the deal. How can the three then be in a committee that probes Kimunya?

In the interest of justice, none of these three should be in this probe committee. Thats like Kivuitu & Co being commisioners in the Kriegler Commission. A travesty of natural justice.

[mak&emoto]

Originally Posted by Tactician

First, the agreement comes from the Daily Nation. No one has denied its veracity yet - not even Orengo.

Second, US$45 million at an exchange rate of KShs 65 to the dollar is the equivalent of KShs 2.93 billion. DO the maths.

To start with the fact that no one has denied something does not make it true. On the selling price, why pay Stamp Duty on Immovables assets only yet movable assets and stock also attract stamp duty?

Originally Posted by Tactician

About the consent, if u know some bit of law, you will realise that CBK was not a party to that consent. The consent was between KACC and Pattni. Check the facts and see. SInce CBK was not a party to it, it could not act on the consent.

So CBK claims that they were not party to the consent, but in the same breadth they readily admit that they did received the hotel when handed over to them and subsequently appointed Ernst & Young as Receiver Managers on the basis if that consent.

Check the facts, CBK adverts that they have been placing in the dailies have it all i.e.

10) they accept that they took possession on the basis of the consent (which expressly transfers ownership),

11) they accept that they appointed Ernst & Young as Receiver Managers on the basis if a consent they were not party to,

12)a&b. they declare that they were not party to the consent and that it cannot affect their legal rights,

12)e. they plead that the consent, to which they are not party, extinguished UDHL's claims on the movable and immovable assets of the GRH,

12)f. they plead that they did not have any rights over the movable assets of GRH and could therefore not sell them,

13) they claim that UHDL's consent terminated the civil cases between UHDL and CBK yet the consent only refers cases between UHDL and KACC. Furthermore they readily admit that the consent signed was in their best interest,

17) they declare that they are prohibited from engaging in commercial undertakings by section 52 of their Act yet in (5) they admit that in 1994 they appointed a Mr. Kittony to manage the hotel on their behalf. This was done using the same section 52.

20)a.&b(ii) they indicate that they sold the hotel as a going concern despite (12f),

21) they admit that they sold both the movable (despite 12f) and immovable assets of GRH,

Who is fooling who?

Originally Posted by Tactician

About interest on the amount owed i explained it here or somewhere else - lets say you owe a bank KShs 1 million and default. The bank proceeds to put your hotel valued at KShs 2 million under receivership. Through no fault of your own, the bank sells the hotel 10 years after they first put the hotel under receivership.

Will the bank apply intereest on the KSHs 1 million for 10 years? Of course not! Its not your fault that they did not sell the hotel. That's why banks ask for security worth in excess of the loan advanced to a borrower - otherwise, the bank would sell your hotel and then tell u that u still owe them money based on compounded interest!

About the charge - it was on the land and building/equipment. If the owner buyer decides to strip it and have a wheat farm there, that's upto him.

CBK charged the property in respect of Kshs. 2.5 Bn debt owed by Exchange Bank in 1993, CBK is a bank and it follows that they would charge interest on the amount that they are owed. Do you want us to believe that 15 years later no interest had accrued on the debt?

Are you arguing in defense of Pattni or CBK?

Forget about the mortgage examples, GRH was not mortgaged to CBK, it was charged. In any case, to exercise the rights of foreclosure, the law on Transfer of Properties expressly requires one to get a court order (Check Section 67), did CBK get one?

Originally Posted by Tactician

Finally, Kimunya has said that Wako, Ringera, Raila were all aware of the deal. How can the three then be in a committee that probes Kimunya?

In the interest of justice, none of these three should be in this probe committee. Thats like Kivuitu & Co being commisioners in the Kriegler Commission. A travesty of natural justice.

Kimunya readily submitted himself to the committee investigating him without any protests. Did he not know that some of the members had knowledge of the deal? He cannot thereafter plead travesty of natural justice, just because the report is unflattering to him.

Since when did having knowledge of goings on preclude one from being able to probe a case of corruption or misuse of office?

[Tactician]

Originally Posted by mak&emoto

To start with the fact that no one has denied something does not make it true. On the selling price, why pay Stamp Duty on Immovables assets only yet movable assets and stock also attract stamp duty?

So CBK claims that they were not party to the consent, but in the same breadth they readily admit that they did received the hotel when handed over to them and subsequently appointed Ernst & Young as Receiver Managers on the basis if that consent.

Check the facts, CBK adverts that they have been placing in the dailies have it all i.e.

10) they accept that they took possession on the basis of the consent (which expressly transfers ownership),

11) they accept that they appointed Ernst & Young as Receiver Managers on the basis if a consent they were not party to,

12)a&b. they declare that they were not party to the consent and that it cannot affect their legal rights,

12)e. they plead that the consent, to which they are not party, extinguished UDHL's claims on the movable and immovable assets of the GRH,

12)f. they plead that they did not have any rights over the movable assets of GRH and could therefore not sell them,

13) they claim that UHDL's consent terminated the civil cases between UHDL and CBK yet the consent only refers cases between UHDL and KACC. Furthermore they readily admit that the consent signed was in their best interest,

17) they declare that they are prohibited from engaging in commercial undertakings by section 52 of their Act yet in (5) they admit that in 1994 they appointed a Mr. Kittony to manage the hotel on their behalf. This was done using the same section 52.

20)a.&b(ii) they indicate that they sold the hotel as a going concern despite (12f),

21) they admit that they sold both the movable (despite 12f) and immovable assets of GRH,

Who is fooling who?

CBK charged the property in respect of Kshs. 2.5 Bn debt owed by Exchange Bank in 1993, CBK is a bank and it follows that they would charge interest on the amount that they are owed. Do you want us to believe that 15 years later no interest had accrued on the debt?

Are you arguing in defense of Pattni or CBK?

Forget about the mortgage examples, GRH was not mortgaged to CBK, it was charged. In any case, to exercise the rights of foreclosure, the law on Transfer of Properties expressly requires one to get a court order (Check Section 67), did CBK get one?

Kimunya readily submitted himself to the committee investigating him without any protests. Did he not know that some of the members had knowledge of the deal? He cannot thereafter plead travesty of natural justice, just because the report is unflattering to him.

Since when did having knowledge of goings on preclude one from being able to probe a case of corruption or misuse of office?

I will address the questions on consent order later.

regarding interest payment, there is something ur missing. Once you default and the bank puts in place a receiver manager, the bank cannot continue counting interest. Ask any banker. Or ask why the probe committee has not raised this.

Secondly, that he submitted to the committee does not validate the travesty of justice.

Lastly, before i continue any more - i do not like ur insinuations that am acting for Pattni. Lets just deal with the facts. If the facts are not in ur favour, just admit it. For example about the US$45 million. Do not personalise this. I have not accused u nor has anyone accused u of acting for Orengo for example. And if u wanna personalise this, then am out.

Sorry but this is what brings kenya down - anytime u wanna have a discussion based on facts, people treat it like its a fight and start fighting the person - saying he is acting on behalf of so and so and is from such tribe thats why etc...

[mkenyaasili]

Originally Posted by mak&emoto

originally posted by standard newspaper article of july 3rd 2008 pattni and his lawyers agreed with kacc officials on april 19 that all suits against him be discontinued and terminated. Kacc has powers to recover property believed to have been acquired irregularly. The settlement was later registered in the high court under section 56b(2) and (4) of the kacc and economic crimes and agreed that: pattni and uhuru highway development limited relinquishes, assigns, reconveys or otherwise transfers ownership and all rights and interest in the property known as land reference no 209/9514 to the central bank. The two were to give efforts to the transfer and in default the deputy registrar of the high court would execute such instruments. The joint receiver managers appointed pursuant to a consent order dated may 31, 2004 were discharged forthwith and the ownership and management of the assets transferred to cbk accounts held by any bank in the name of joint receivers/receiver together with funds held therein be transferred to cbk. Kacc discontinues civil suit no 1111 of 2003 and pending applications. Cbk was to abandon other claims against defendants. Mrs fathuma sichale of kacc signed the agreement..

good job this high court settlement ought to put to rest this argument of the gr being held as security. The consent order are clear - cbk assumed ownership of the the hotel as of that date

[mak&emoto]

Originally Posted by Tactician

I will address the questions on consent order later.

regarding interest payment, there is something ur missing. Once you default and the bank puts in place a receiver manager, the bank cannot continue counting interest. Ask any banker. Or ask why the probe committee has not raised this.

Secondly, that he submitted to the committee does not validate the travesty of justice.

Lastly, before i continue any more - i do not like ur insinuations that am acting for Pattni. Lets just deal with the facts. If the facts are not in ur favour, just admit it. For example about the US$45 million. Do not personalise this. I have not accused u nor has anyone accused u of acting for Orengo for example. And if u wanna personalise this, then am out.

Sorry but this is what brings kenya down - anytime u wanna have a discussion based on facts, people treat it like its a fight and start fighting the person - saying he is acting on behalf of so and so and is from such tribe thats why etc...

If you want out, just get out, don't look for lame excuses. Why the touchiness? I did not at any time get personal nor did I even insinuate that you were acting for Pattni! Not that I would even care.

Actually, having considering your arguments, I am persuaded that the gist of what you seem to be stating is that CBK/Pattni's interests are paramount to the interest of Kenyans whose funds were actually looted in both the GIL and GRH scams, so I simply asked who you were arguing in favor of whether CBK or pattni?

About the interest, yes, banks may be barred from charging interest when their receiver managers are managing the asset, isn't it on record that CBK's appointed receiver manager was removed by a court order in 1994? So what exactly stopped them from charging interest after that? Finally, how much has CBK spent in pursuit of the Kshs. 2.5Bn and why were these collosal amounts not factored in setting the selling price and in recovery of the said debt?

[Tactician]

Originally Posted by mak&emoto

if you want out, just get out, don't look for lame excuses. Why the touchiness? i did not at any time get personal nor did i even insinuate that you were acting for pattni! not that i would even care. Actually, having considering your arguments, i am persuaded that the gist of what you seem to be stating is that cbk/pattni's interests are paramount to the interest of kenyans whose funds were actually looted in both the gil and grh scams, so i simply asked who you were arguing in favor of whether cbk or pattni? about the interest, yes, banks may be barred from charging interest when their receiver managers are managing the asset, isn't it on record that cbk's appointed receiver manager was removed by a court order in 1994? so what exactly stopped them from charging interest after that? finally, how much has cbk spent in pursuit of the kshs. 2.5bn and why were these collosal amounts not factored in setting the selling price and in recovery of the said debt?

this is not about pattni's interests or national interest am afraid to say. This is a legal matter to be settled by the presently established laws of the land. If we think pattni is trampling on our national interests, then we change the law - for future purposes. If you appreciate law, then u know the law is an ass - and national interests do not matter.

If in doubt, ask how many people have been convicted as murderers and sentenced to death by the high court only to see them set free by the court of appeal simply cos the police held the convict for more than the required 14 days before charging them in court. If it was about national interest, the court of appeal would say that the national interest of keeping a convicted murderer in jail is more important then the law.

So let us disabuse the idea that this is a case of national interest. This is a case of due legal process and whether kimunya followed it or not. After all, there is no offence in the penal code called "acting against national interest by selling grh/public assets". The law kimunya would be accused of flouting are the privatisation act etc....in which case the whole case would hinge on whether grh was a public asset so that kimunya could privatise it.

Anyway, it is the law that decided which interests are paramount, - not public opinion. Which is why MPs, ministers, judges swear allegiance to the constitution and the laws - not to the people of kenya. The only way public opinion affects court judgments in a democracy is by electing mps to change the law which the judges then interpret. Thats the way it is.

So dont doubt my interest in stating that kimunya was right. I am simply following what the law says - unless of cos u r suggesting the public should vote on all legal matters so as to decide which national interests are paramount.

Yes i agree that cbk was removed as receiver manager in 1994. The minister for finance and the cbk governor then (mudavadi & kotut) can best answer why this happened. Without delving into details, let it suffice to say that the politics and the attendant corruption involving grh could not have let cbk run grh as receiver manager. Pattni also launched so many court cases and counterclaims against cbk, used politicians to influence judiciary etc that cbk could not make any headway. The legal costs involved in grh are probably what makes cbk get the whole kshs 2.9 billion ie kshs 400m would then represent the costs.

This was the whole point of the agreement between cbk and pattni - ie that all these counterclaims be dropped amicably - otherwise pattni could go ahead and do what he has perfected ie go to court to block the sale and wer are back to 1993 all over again.

Lastly, lets also address the political question - there is a lot of hypocrisy which we kenyans are displaying here. The reasoning is - if a minister is suspected of corruption, then he must resign. Kimunya has been suspected and he should resign - thats the argument being made.

If we adopt this, let us also simultaneoulsy call for the resignation of all ministers and assistant ministers charged in court on corruption charges. On a political front, note some of the politicians are very quiet on kimunya's saga - cos they know that kimunya's removal on allegations will bring them down too - not even raila will take on kimunya head on - which is why we are hearing uhuru cautioning that if this is the way to go, then the grand coalition govt will collapse.

After all, all the main players have been accused of corruption by other probes or in a court of law. I mention probes cos thats what we have for kimunya....in the examples below, i have produced those people accused by probes/charges in a court of law - not mere allegations

would raila for example be willing to resign as pm since the ndung'u report accused him of corruption in acquiring mollasses?

will oburu odinga resign cos he is also mentioned in the ndung'u report for acquiring land illegally? In fact, will the same MPs now saying they cannot allow Kimunya to move finance motions in parliament cos of suspicions of corruption allow Oburu to move motions yet he is accused of the same?

would mudavadi resign cos of the goldenburg scam?

would ruto resign cos of the kenya pipeline corruption case currently in court? after all, how does ruto sit in the same cabinet with the same man (wako) who is prosecuting him in court?

would chris obure and okemo resign cos of initiating/signing of the anglo leasing contracts? etc etc

My take, from a political angle, is that Kibaki and Raila will realise what this will do to the govt - and theywill move to kill all these Kimunya talk as they both stand to lose from the above repercussions

[polepole]

Originally Posted by mkenyaasili

there is more than meets the eye- powerful forces are involved in this and the stakes are high -

Why did Raila summon Gitobu imanyara and tried to tell him to try kill the no confidence motion?

Raila knows something -

But I wonder what investigations are necessary when Kimunya has clearly violated 3 laws - public ethics act, procurement and disposal act,privatization act -

By appearing to be protecting kimunya kibaki and raila are messing big time they should read the mood of the country and let Kimunya go, much as they may be involved in the scams - they should fire him in public as some sort of PR to Kenyans ,but the more the embattled kimunya stays in office the more the govt image gets dented.

******************
Whatever you fight, you strengthen, what you resist persists. Greed, selfishness; exploitation, cruelty, and violence are still all-pervasive on this planet. When you are in the grip of a mind set, your perceptions become extremely selective as well as distorted. In other words you will see only what you want to see and then misinterpret it, it is a delusional system, or instead of imagining it, listen to Rush, or watch the news channels tonight on TV