An appeal filed by senior officials of Uganda-based firm Sarrai Group was taken out from the hearing list last week upon discovery that a notice for the hearing of the matter was issued on a Sunday, judges said Thursday.
The bench of three judges of the Appellate court expressed displeasure at the manner in which the process of fixing the hearing dates was rushed. The judges said they were not party to giving the hearing dates.
The case at the appellate court concerns alleged disobedience of orders issued by the High Court stopping Sarrai Group from operating the sugar company.
The owner of Sarrai- Mr Sarbjit Singh Rai, together with Rakesh Kumar and Stephen Kihumba, were found guilty of contempt by High Court judge Dorah Chepkwony over failure to cease operations at Mumias Sugar Company.
They were fined Sh100,000 each and ordered to appear before Justice Alfred Mabeya, the presiding judge of the commercial division of the High Court, for sentencing.
Aware that they may be fined or thrown to jail, the officials rushed to court of appeal in a bid to stop the sentencing.
But Court of Appeal judges Hellen Omondi, John Mativo and Grace Ngenye declined to hear the case over the manner in which the hearing was rushed.
“Before the time for compliance lapsed, a hearing notice was issued on a Sunday in total ambush to the parties, thus undermining the right to a fair hearing as enshrined under Article 50 of the Constitution of Kenya,” the judges said.
The judges took out the case from the hearing list saying it was prematurely and improperly listed before them.
The officials appeared before Justice Mabeya two days later but the judge pushed the sentencing to June 15.
This was after he indicated that he had recused himself from the case last year.
“Having recused myself from the matter, I cannot purport to make any judicial pronouncements on the same,” the judge said.
The trio through senior counsel Prof Githu Muigai had pleaded with the court to defer the sentencing for at least 90 days, to enable them pursue an appeal at the Court of Appeal and also seek a review of the decision.
Sarrai group has maintained that they obtained an order suspending the decision canceling the 20-year-lease to manage Mumias Sugar Company.
At the Court of Appeal, the judges noted that the time frame within which submissions were to be filed, was yet to lapse.
“So pleadings have not closed. We note that a number of respondents are yet to file and serve their documents as they were riding on the time frame set out in the directions by the Registrar,” the judges said.
The judges were informed that the sudden shifting of the ground seriously compromises the right to a fair hearing, and creates the impression that a day's notice within which to prepare, can only mean that the intention is to assist some of the parties in the matter and that the outcome of the case has already been pre-determined.
The court was also informed that there was a related matter, which had been dealt with by a different bench of the Court of Appeal, which its outcome stirred some level of unease, leading to a petition being filed against a judge at the Judicial Service Commission (JSC).
But Prof Muigai, who represented Sarrai Group, said what is at stake is the liberty of individuals, whose fate will be sealed by the pronouncement of the High Court, hence the urgency for the Appellate court to intervene.
Lawyer Mahat Somane said he too received the application late, but opted to burn the midnight oil and prepared his submissions in readiness for the hearing.
The Uganda-based company had been awarded a 20-year-lease to operate the troubled miller but it was cancelled in April last year.
KCB Group, which had placed the miller under administration challenged the decision and were granted temporary orders in September last year, for them to continue operating, a stand supported by Sarrai Group.