Lawyer’s Sh71m debt claim from Biwott family rejected
The late Nicholas Biwott. A lawyer has failed in his bid to recover a debt of Sh71 million he allegedly loaned Biwott between October 2014 and May 2015.
What you need to know:
- Mr Ahmed Adan wanted the court to order executors of the will written by Mr Biwott and the administrators of his estate to include him as a creditor and pay his dues with interest.
- The lawyer stated that between October 9, 2014, and May 13, 2015, he lent Mr Biwott the funds via bank transfers from Barclays through Wetangula, Adan & Company Advocates.
- But the court dismissed his claim on the grounds that he failed to prove his case to the required threshold.
A lawyer has failed in his bid to recover a debt of Sh71 million he allegedly loaned former powerful Cabinet minister Nicholas Biwott between October 2014 and May 2015.
Mr Ahmed Adan, trading as Wetangula, Adan & Company Advocates, wanted the court to order executors of the will written by Mr Biwott and the administrators of his estate to include him as a creditor and pay his dues with interest.
He claimed that at the time of his death on July 11, 2017, the politician had not repaid the debt or any part of it.
In the case filed in court in November 2018, the lawyer sued Desterio Andadi Oyatsi, Kenneth Hamish Wooler, and Keith & Elisabeth Klem jointly in their capacities as executors of the will and administrators of the estate.
Mr Biwott served in the government of former President Daniel Moi and was at the epicentre of power during Mr Moi’s 24-year reign.
Bank transfers
The lawyer stated that between October 9, 2014, and May 13, 2015, he lent Mr Biwott the funds via bank transfers from Barclays through Wetangula, Adan & Company Advocates.
He transferred the money to Mr Biwott’s account at Barclays Bank through 18 instalments.
On March 16, 2018, Mr Adan lodged his claim with the three executors but was denied any payment, prompting him to move to court.
He produced 18 funds transfer slips together with a bank statement from his account evidencing the transfer of the amount to Mr Biwott’s account.
But the court dismissed his claim on the grounds that he failed to prove his case to the required threshold.
Justice Abigail Mshila said the documentary evidence showed that the transfer of the funds from the lawyer’s bank account to Mr Biwott’s account was described as either “sales proceed” or “deposit of purchase price”.
“None of the said narratives indicate that the transfers were effected as a loan to Biwott,” said the judge, adding that a witness statement by Mr Adan indicated that he lent the money to Mr Biwott, while the bank account from which the transactions were carried out was operated and maintained in the name of Wetangula Adan Makhoha & Co.
He said this disproved Mr Adan’s statement.
The executors of the will and administrators of the estate had also opposed the claim, saying the lawyer had not explained how the money transferred by the law firm to Mr Biwott as “sale proceeds” or “purchase of property” became a loan.
They argued that if the funds were loan proceeds or disbursements, the same was unlawful, null and void, and irrecoverable by Mr Adan.
They also said the amount claimed was the consideration of properties Mr Biwott sold to Mr Adan.
In addition, there was no application made by the late politician for the alleged loan as alleged or at all.
Wealthy estate
Mr Biwott, who was commonly known as Total Man, was believed to be a tycoon, and his estate was reported to have a value of over Sh1.4 billion.
It was believed he had a stake in over 40 companies, among them Kenol Kobil, Sisibo Tea Factory, HZ Construction, and Air Kenya.
In his will, Mr Biwott relinquished his stakes in shared businesses to his partners.
If the partners die, their beneficiaries will get Mr Biwott’s stake in the shared businesses.
His wife, Johanna, and seven children were to share his assets after paying debts.
One of his daughters, Canada-based lawyer Rita Field-Marsham, relinquished her share of the assets to her siblings.
