The estate of the Mombasa tycoon Tahir Sheikh Said (TSS) is set to lose property worth billions after the court of Appeal on March 11 lifted orders barring a local bank from selling the tycoons property to recover a Ksh4 billion loan.
Justice Gatembu Kairu, Kathurima M’Inoti and William Ouko overturned Environment and Lands Court’s orders saying that the law was tilted in favour of the lender and that Justice James Olola sympathised with the family of TSS.
“Whereas the sympathy and compassion shown by the judge may be commendable, it was not a sound legal basis for exercising judicial discretion in the manner that he did,” the Court of Appeal judges said.
Juja Coffee Exporters, owned by TSS, borrowed Ksh2.9 billion from the bank using a parcel of land in Mombasa as security. The land was registered under another firm, Lamu Ginners Company which is also owned by the late tycoon.
“In restraining the bank from pursuing its remedies under the legal charge, the learned Judge appears to also have been moved by the plea that one of the directors of the borrower, who was said to be the ‘mover’ of the company and the principal director, had died,” the Court of Appeal judges said.
In its petition, Juja Coffee argued that Said was the primary decision-maker and that he negotiated the loan.
The surviving director, Tauhida Tahir Said, added that they had difficulties tracing the relevant documents on the loans and expressed the desire to settle the loan so as to salvage the property.
In his ruling last year, Justice Olola said that there were doubts on the loan and barred the bank from auctioning the land until it produced relevant documents and authenticated the amounts the tycoon’s firm owned.
“The plaintiff’s surviving directors have indicated that they had no knowledge of the execution of the charge and I think it was incumbent upon the defendants to demonstrate the existence of the same as well as the fact that it was properly executed by authorised signatories,” Olola ruled.
Unsatisfied with the ruling, the bank moved to the Court of Appeal arguing that the judge failed to consider that the borrower had defaulted on the loan and it had already accrued more than Ksh12 million interest.
The tycoon died on January 10,2017.
