The Court of Appeal on Monday settled a family feud that saw three brothers fight for the control of giant retailer Naivas.
A three-judge bench comprised of Justices Roselyn Nambuye, Fatuma Sichale and Sankale ole Kantai, found that the complainant, Newton Kagiri Mukuha, has no stake in the retailer after running down all the stores inherited from his deceased father, Peter Mukuha Kago.
The appellate court stood with the High Court judgment of 2014, noting that Kagiri failed to show how the lower court erred in its ruling.
“We believe we have said enough to demonstrate that the appellant’s appeal is without merit and the same is hereby dismissed in its entirety,” said the judges.
The appellate court said Kagiri has never appealed against Justice Anyara Emukule’s High Court judgment.
“How then can he turn around and say that the Court (Emukule, J.) could not issue the orders that were issued on 31st October 2014? We think the appellant is blowing hot and cold, a situation we are not prepared to countenance,” the judges said.
Kagiri, the oldest of the three brothers, had sought orders freezing further share sales in Naivas and proceeds from the sale of a minority stake to a consortium of investors.
Naivas received Sh6 billion from the International Finance Corporation (IFC), private equity firms Amethis and MCB Equity Fund and German sovereign wealth fund DEG for the minority stake.
Kagiri wanted a 20 percent stake and shares from the 20 percent stake held by his late father.
He told the court that he is entitled to a 20 percent stake worth Sh4 billion from his seed capital that established the retailer.
“Court be pleased to issue order compelling the directors of Naivas to jointly deposit the proceeds of sale of shares to Amethis in a joint interest-earning account pending the hearing and determination of the appeal,” said Mr Kagiri who accused his brothers of subjecting to poverty.
“Issue temporary injunction restraining the respondent herein and all other directors of Naivas from further sale of shares and assets.”
He also wanted his late father’s stake redistributed after his younger brother Simon Gachwe and David Kimani were offered 20 percent stake each while his two sisters; Grace Wambui and Linet Wairimu shared equally amongst themselves the remaining 60 percent.
Naivas has more than 75 stores across Kenya.