Mohamed Jaffer
Mujtaba Jaffer
Mombasa Deputy Registrar Rita Orora is set to issue directives on a matter where the son of Mombasa tycoon Mohamed Jaffer, Mujtaba Jaffer, has been sued for fraudulently obtaining a loan of USD 3.6 million (KSh 464 million) from the East African Development Bank.
Orora has directed that the matter be mentioned on Thursday to allow the Deputy Registrar to give further directions on whether the file will be placed before the Principal Judge to allocate a trial judge.
The directive to have the matter reheard at the Court of Appeal comes after the Court of Appeal ordered the file to be returned to the High Court after finding that the trial judge erred in law by removing the suit filed by the East African Development Bank.
Court of Appeal judges, led by Wanjiru Karanja, Asije Mkahandia, and Justice Kairu Gatembu, dismissed the judgment by the trial judge and issued orders to have the matter heard afresh.
In 2016, the African Development Bank sued Jaffer Manoj, now deceased, Amritlal Devani, and Mujtaba Jaffer, seeking to recover USD 3.6 million and interest of 12%, which the respondents had obtained from the plaintiffs as a loan.
The matter had been listed for hearing before Mombasa High Court Judge Kizito Mangale, who has since been transferred.
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In the suit, the African Development Bank, in its affidavit, stated that the respondents had requested a loan by way of special drawing rights to Kenya Bus Services Mombasa Limited under a loan agreement dated October 1998.
The respondents defaulted on the repayment of the loan, and as of March 1, 2003, the said amount of USD 3.6 million, along with interest at 12% per annum, was outstanding, which the bank sought to recover from the respondents under the said guarantee.
The Court of Appeal ruled that the finding by the learned judge that the guarantee was not drawn by an advocate was made without evaluating and appreciating all the evidence presented before him.
The bench pointed out that it was not a clear case for striking out the application.
The Court of Appeal judges observed that in reaching his decision, the learned judge failed to take into account considerations he should have considered.
“We are therefore entitled to interfere with the exercise of discretion by the learned judge,” the bench ruled.
Justice Otieno had thrown out the application on the grounds that the finding or presumption by the learned judge that the guarantee was not drawn by an advocate was flawed.
The matter is set to be mentioned next month.
