Tatu City Limited and Cedar IV limited have moved to court to lift an order stopping the firms from developing part of the expansive farm.
Th developers moved to court to lift the order obtained by Dubai Gems on July 13.
The company through senior counsel Ahmednasir Abdullahi wants the court to revert to the status before the order was issued.
“Upon hearing and determination of this application, this Honourable Court be pleased to vacate, discharge and set aside in its entirety the order issued or dated 13th July 2023,” seeks Tatu city and Cedar IV ltd.
Tatu City also wants the court to vacate the inhibitions imposed so that the company can deal with its properties in Ruiru, Kiambu as it seems fit and appropriate.
Dubai Gems obtained the order on 13 July 2023 stopping Tatu City and Cedar IV ltd from undertaking any dealings on the land comprising of 996.6 hectares of the land, which Tatu City maintains is the absolute owner.
Tatu city lawyer Ahmednasir told Justice Josephine Mongare that the order was obtained through concealment of material facts, and by fraud.
The veteran lawyer told the judge that the order as framed looks like the Court granted an interlocutory injunction in the absence of Tatu city and Cedar IV ltd.
Further, the court heard that the order implies that the matter was coming up for directions but the matter was heard ex parte.
“The Court does not have jurisdiction to issue an injunction when the matter comes up before the Court for a mention or directions,” Ahmednasir told the commercial court judge.
The court heard that the suit property measures 2,462.5 acres and is worth over Sh123 billion and the injunction will be catastrophic for Tatu city who uses the proceeds of the sale to repay colossal loans it borrowed offshore.
The court heard that Dubai Gems ltd and Tatu city are total strangers and have no legal relationship whatsoever and the company is not a member, a shareholder or director of Tatu Citys’ companies.
“He is unknown to Tatu City and Dubai Gems ltd has no cause of action against the Tatu City and has no relationship and never interacted with Dubai Gems ltd in any way. Being “total strangers” is not strong enough to describe their strangeness to one another.
Ahmednasir added that it is legally inconceivable in the absence of any legal dealing and relationship between Dubai Gems ltd and Tatu city for the company to establish a prima facie case with a probability of success and obtain an ex parte order stopping the sole legal and registered proprietor of the suit property from any dealings relating to the same
He added that Dubai Gems ltd did not satisfy at all the requirements for granting the equitable remedy for injunction.
“That a court of equity cannot injunct the owner of a property from exercising his property rights and that in a dispute over ownership of a company between shareholders the property rights of the company are not in play for such property is solely owned by the company and cannot be the subject of litigation between the shareholders of the company,” Ahmednasir told the judge.
He dismissed Dubai Gems adding that the company’s entire claim is based on agreement between it and one Stephen Mbugua Mwagiru dated 16th March 2023 in which Dubai Gems allegedly bought without any consideration certain shares the said Stephen Mbugua Mwagiru held in a company called Blacknight Holdings. Blacknight Holdings is not a member, shareholder or director of Tatu city and are total strangers.
“A stranger cannot come to a court of equity and obtain an injunction in the circumstances Dubai Gems ltd did,” Ahmednasir told the court.
He added that in the Plaint dated 6 June 2023 comprising of 16 paragraphs, Dubai Gems ltd does not plead a single paragraph as to any claim it has over L.R. No. 28867. In the premise it cannot obtain an interlocutory injunction over Tatus’ property.
In the court documents, Tatu city and Cedar IV ltd told the court that in law, directors and shareholders of a company have no legal or equitable right or claim over the company’s property and the property belongs to the company as separate and distinct juridic entity.
“Dubai Gems ltd in obtaining the injunction ex parte misled the court, deceived it and visited fraud on the court,” said the company.