How dramatic demolition of Simmers landed magistrate, lawyer in trouble
Popular Simmers Bar and Restaurant, Nairobi, after it was closed on March 2, 2018.
By Brian Wasuna
Nation Media Group
What you need to know:
- Surrounded by more refined businesses like the 680 Hotel and the 19-floor Ecobank Towers, Simmers stuck out like a sore thumb.
- It was a place where the ordinary Kenyan mingled with the rich.
- Here, politicians and businessmen, job seekers, corporate slaves and entrepreneurs mixed into a potent concoction that was a never ending party.
Smack-bang in the middle of the capital, it was a place where outspoken politicians and businessmen, job seekers, corporate slaves and entrepreneurs mixed into a potent concoction that was a never-ending party
Friday, March 2, 2018, seemed like the start of any other weekend for staff and patrons at the popular Simmers Bar & Restaurant at the intersection of Kenyatta Avenue and Muindi Mbingu Street in the Nairobi city centre.
Proprietor Suleiman Murunga had already purchased copious amounts of beer that his patrons loved to consume day and night, and several kilos of meat for Simmers’ famous nyama choma, as staff set tables ready to receive patrons that were itching to part with a chunk of their February salaries.
Surrounded by more refined businesses like the 680 Hotel and the 19-floor Ecobank Towers that hosts dozens of polished enterprises, Simmers stuck out like a sore thumb.
Simmers had also, for over two decades, formed a symbiotic relationship with some of its neighbours. With the 680 Hotel, for example.
At times, as some 680 Hotel clients would cross the road into Simmers for its famed nyama choma, a few Simmers patrons would be heading in the other direction to look for overnight accommodation.
It was a place where the ordinary Kenyan mingled with the rich.
Politicians and businessmen, job seekers, corporate slaves and entrepreneurs mixed into a potent concoction that was a never-ending party.
Auctioneers accompanied by uniformed police officers brought that party to an end on March 2, 2018, when they oversaw Simmers’ flattening. Bulldozers pummeled the tents and well-set tables as hapless staff attempted to salvage anything they could.
Also Read: What the law says about demolitions
Much like most demolitions in Kenya, looters also had a field day as they carted away food and alcohol to go make merry elsewhere.
Mr Murunga, a former Kimilili MP, stood on the sidelines, protesting that Masore Nyang’au & Company Advocates did not serve him with the court order sanctioning the eviction and demolition of property.
More importantly, Mr Murunga’s shouts that the land was now his, fell on deaf ears. While Mr Murunga had leased the land from Nilestar Holdings Ltd since 1997, the latter’s government lease had expired in 2009.
Mr Murunga applied for allotment of the land in 2011 and this was granted. So in essence, Mr Murunga and his Simmers Bar & Restaurant were evicted from their own property.
Isaac Karasi Orenge, who was at the time a senior resident magistrate based at Milimani Law Courts, had issued the eviction order on February 23, 2018.
The eviction order was on the strength of a case filed by Nilestar Holdings Ltd and Green Valley Ltd, represented by Masore Nyang’au & Company Advocates, on February 20, 2018.
In the application, the two companies claimed that they are the registered owners of L.R. Number Nairobi/209/918 – the land hosting Simmers Bar & Restaurant – and that Mr Murunga had refused to pay rent for several years.
In total, the suit was claiming over Sh9 million in rent, legal fees and auctioneer fees. The magistrate ordered that the eviction application be served on Nilestar and Green Valley, and then appear before him on February 23, 2018 for hearing.
Nilestar owned the land until 2009 when its government lease expired. Nilestar’s application for renewal of the government lease in 2010 was rejected by the Ministry of Lands.
Ruins of the once popular Simmers Bar and Restaurant, Nairobi.
The families of former Finance minister Arthur Magugu and businessman Madatah Hasham Ebraham have for years been battling in court over ownership of Nilestar.
Mr Magugu’s family claims to have shares in Nilestar through Green Valley Ltd. As the Magugu and Ebrahim families were battling, the 99-year government lease issued to Nilestar expired. Mr Murunga applied for allotment of the property on October 22, 2010.
That application was approved on September 21, 2011 and two months later, Mr Murunga was later issued with a letter of allotment. During the eviction application hearing, Mr Murunga was absent. Leo Masore Nyang’au told magistrate Orenge that he was an advocate representing Nilestar and Green Valley.
He insisted that Mr Murunga had been served with the court papers but had obviously elected not to attend the hearing. Godfrey Mososi Omambia, a process server, swore an affidavit stating that he received the court papers at 2.35pm on February 20, 2018 with instructions to serve Mr Murunga.
“On the same day at around 1.30pm while in the company of Mr Kinyanjui Magugu, the director of the 2nd plaintiff herein, we proceeded to Kenyatta Avenue off Muindi Mbingu Street opposite 680 Hotel building in Nairobi where the defendants herein carries their business for gain,” Mr Omambia added.
Nobody, not even the magistrate questioned how Mr Omambia had arrived at Simmers over one hour before Masore Nyang’au Advocates had given him the court papers that were to be served on Mr Murunga, based on the process server’s own affidavit.
Mr Omambia insisted that he found directors of Simmers seated at a table, introduced himself and served them with the court papers.
Again, nobody seemed to question how a sole proprietorship had directors, as those are usually officials appointed by limited liability companies.
Magistrate Orenge issued eviction orders after finding that Mr Murunga had been served but skipped the hearing. Nine days later, Simmers was no more. Interestingly, at the time, there was a pending High Court case Mr Murunga had filed against Nilestar and Green Valley in 2013.
In that suit, Mr Murunga was seeking to bar the two companies from demanding rent or evicting him from L.R. Number 209/918 as he was now the legal owner.
The High Court had issued an order barring Mr Murunga’s eviction from the property, and stopping Nilestar and Green Valley from demanding rent.
IN PICTURES: Simmers Bar and Restaurant demolished
After Simmers’ demolition, Mr Murunga filed a contempt application before the High Court seeking to jail Nilestar, Green Valley and Mr Nyang’au. This means Mr Orenge’s eviction order was irregular as a magistrate cannot overrule a High Court decision.
Mr Orenge was, however, only notified of the High Court order after the eviction and demolition of Simmers, and he then threw out the case filed by Nilestar and Green Valley.
It would later emerge that Mr Murunga was not in Nairobi on February 20, 2018 and could not have been physically served with the court papers – the process server had deceived the court.
Following his loss to Didmus Baraza in the August, 2022 election, Mr Murunga filed a petition challenging the results. On February 20, 2018 when the process server claimed to have served him with court papers at Simmers, Mr Murunga was before Bungoma High Court judge Anthony Mrima for delivery of the judgment.
Mr Murunga’s election petition was dismissed, and he was out of Parliament. And just three days later, the business that had for five years competed with Kimilili constituents for Mr Murunga’s attention, was gone.
A police officer guards property at Simmers Bar and Restaurant in Nairobi after it was closed on March 2, 2018.
The eviction order has now spelled doom for lawyer Mr Nyang’au and magistrate Mr Orenge as they risk losing their jobs.
In 2019 Mr Murunga filed a complaint against Mr Nyang’au at the Law Society of Kenya’s disciplinary tribunal, accusing the advocate of misconduct. The lawyer in his response said that he was instructed by Gicho Kinyanjui Magugu.
Mr Magugu allegedly presented himself as a director of Green Valley. Mr Nyang’au added that he did not know there was a pending High Court case in which orders barring Simmers eviction had been issued.
He further said that Mr Orenge’s orders were for eviction order hence his clients, police and Zachary Baraza’s Siuma Auctioneers went beyond the allowed actions by demolishing Simmers.
The tribunal in 2021 found Mr Nyang’au guilty of unprofessional conduct, after finding that Mr Nyang’au did not show any evidence that Mr Magugu is a director of Green Valley, a move that would have sustained the argument that a lawyer was just carrying out his client’s instructions.
Jamillah Ebrahim, a shareholder and director of Nilestar, filed an affidavit in the contempt of court application at the High Court, revealing that her company neither instructed Mr Nyang’au and was not even aware of the case before Mr Orenge.
Mr Ebrahim added that Nilestar did not instruct Siuma Auctioneers. Having been found guilty of unprofessional conduct, Mr Nyang’au is now at risk of being struck off the roll of advocates if none of his appeals sails through. Mr Nyang’au challenged the tribunal decision at the High Court on October 13, 2021. He also filed an application seeking to stop the tribunal from proceeding with mitigation and sentencing.
Justice Joseph Sergon dismissed the application seeking to stop sentencing, and held that Mr Nyang’au is at liberty to also challenge any sentence that the tribunal will mete out. Mr Nyang’au then withdrew the appeal.
On February 4, 2022 Mr Nyang’au filed a fresh case before the constitutional and human rights division of the High Court, seeking to quash the tribunal decision and proceedings.
Justice Thande Mugure in her judgment held that Mr Nyang’au was abusing the court process as he only filed a constitutional petition after failing to stop the tribunal proceedings through an appeal against the decision.
The judge dismissed Mr Nyang’au’s suit. The lawyer challenged Justice Mugure’s decision at the Court of Appeal. On August 30, 2023 as the Court of Appeal matter was still proceeding, Mr Nyang’au also filed an application at the Advocates Disciplinary Tribunal, seeking to review the decision that convicted him of unprofessional conduct.
That application is still pending determination by the tribunal. The Court of Appeal dismissed Mr Nyang’au’s case on January 25, 2024. On November March 24, 2023 filed a complaint against magistrate Orenge with the Judiciary Ombudsman.
In his complaint, Mr Murunga argued that Mr Orenge failed to appreciate that the value of the land was higher than what magistrates are allowed to handle. Under Kenyan law, magistrates can only handle cases whose subject matter has a value below Sh20 million. Mr Murunga argued that at the time Mr Orenge issued the eviction order, the land was worth Sh500 million.
The former MP added that Mr Orenge failed to take into account that there was a High Court case already ongoing in which orders stopping eviction had been issued.
“As a result of the magistrate’s actions I lost my business and life time investment of over 30 years, goodwill, money, stock and destroyed the livelihood of over 25 employees who were rendered jobless,” Mr Murunga said in the complaint. Mr Murunga claimed that Mr Orenge colluded with Mr Nyang’au to issue an irregular eviction order, citing that usual procedure requires a full hearing before judges and magistrates make such drastic and final decisions.
“Despite the fact that the pleadings had not been served on me and/or my agents as desired by the law, he proceeded to issue mandatory orders of eviction albeit unlawfully. The Hon. Magistrate granted final orders of eviction on an application without hearing and determination as desired by law,” Mr Murunga said in his complaint. Defying that procedure is what has now landed Mr Orenge in trouble, as he now stares at dismissal from the Judiciary. The JSC on November 9, 2023 served Mr Orenge with a gross misconduct charge, accusing him of acting in bad faith by issuing eviction orders before hearing Mr Murunga’s side of the story.
On February 6, 2024 the Judiciary Service Commission (JSC) withdrew Mr Orenge from duty until further notice, without citing reasons, in a move that points at a possible suspension. The case Mr Murunga filed against Nilestar, Green Valley and the National Land Commission (NLC) in 2013, and where orders blocking interference with Simmers, is still ongoing. On December 11, 2023 former NLC chairperson Muhammad Swazuri dropped a bombshell in an affidavit – his signature was forged in a letter that purported to cancel the allotment of the disputed land to Mr Murunga.
A letter dated February 18, 2014 allegedly from Prof Swazuri to Mr Murunga stated that at the time of allotment to the latter, there was a court order stopping any dealings with the disputed property. Prof Swazuri now says in his affidavit that he never authored the letter, and that the signature appearing on the document is different from his.
“I verily confirm that I did not and neither did the commission issue the said letter of February 18, 2014 withdrawing the letter of allotment issued to Mr Suleiman Murunga based on a purported court order that had been issued at the Nairobi High Court on February 4, 2011 inter alia prohibiting any further registration in the ownership, leasing, subleasing, allotment user, occupation or possession or any kind of right, title or interest over L.R. Number 209/908 and 209/918,” Prof Swazuri said in his affidavit.
Prof Swazuri has also submitted samples of his signature for comparison with the one that appears in the 2014 letter he has disowned. The High Court order cited in the allegedly forged letter was overruled in 2015 when Justice John Mutungi held that the NLC had no authority to revoke the letter of allotment issued by the Lands ministry.
