At risk, said the lawyers, is that MPs could end up making it easy for Mr Pattni and the range of companies associated with him to be paid Sh17.15 billion.
Deputy Speaker Joyce Laboso on Thursday evening cut short debate on the report of the Public Investments Committee on the basis of the letter written and hurriedly submitted to the National Assembly by the firm of Ngatia & Associates.
Lawyers for the Kenya Airports Authority have protested to Parliament and temporarily stopped debate on a report indicting them for their handling of a long-running dispute between the parastatal and companies associated with Mr Kamlesh Pattni.
But their efforts could come to nothing as Speaker Justin Muturi told the Nation that debate on a report already prepared and tabled in the House is unstoppable.
In their letter, the lawyers said that despite their submission of what they said was clear evidence, the Public Investments Committee prepared a report that was contrary to the facts.
“The report is intended to validate bogus claims by Kamlesh Pattni which are the subject matter of pending cases at the High Court. We write to request you to halt the debate to enable us present to you and the entire House the cases which are currently before the High Court and which the report intends to validate,” the lawyers said.
“Truly, the House cannot be made to pass resolutions whose primary purpose is to validate bogus and fictitious claims,” Ngatia & Associates concluded.
With no MP among the few that were in the chambers willing to contribute to the motion for the adoption of the report after Kanduyi MP Wafula Wamunyinyi initiated debate, she announced the decision to stop debate.
But Mr Muturi, the Speaker, said that while the House was in receipt of the letter from the KAA’s lawyers, it would likely not change much.
“I believe that that in itself cannot stop debate. The committee has already made recommendations and those recommendations, among many others, are that the Attorney-General takes over those cases because it looks like some of the lawyers employed by KAA appear to have been compromised,” Mr Muturi said.
PIC recommended that the AG takes over the cases “as a matter of national interest” – all the cases related to the duty free shops that were being handled by an external legal team, an indirect reference to Ngatia & Associates.
Mr Fred Ngatia, one of the partners of the law firm, was also directly targeted by PIC, which recommended that KAA review his Sh290 million fee note and criticised his handling of the cases.
“Mr Fred Ngatia did not act in the best interests of his client in his representation of KAA on the duty free cases and dispute resolutions. Through his advice, KAA and the Kenyan public stand to lose not less than Sh7 billion which World Duty Free/Dubai Duty Free is claiming for loss incurred during the rushed forcible eviction,” PIC said.
If the report is adopted as it is, this would amount to parliamentary indictment of the lawyer.
“There is no opportunity for him to appear because the committee has already made a report. We cannot now stop that. That letter is just like a protest, nothing else. He is coming too late in the day,” Mr Muturi said.
“If you appear before a committee and you give evidence in a particular way, you do not expect that the committee can only accept your way. Even in court, people give evidence and the judge can rule against you. That letter is misinformed,” he added.
From the letter, however, it would appear like the National Assembly would end up endorsing the payment of Sh17.15 billion by adopting the report.
The committee was generally of the opinion that it had sealed all avenues through which the firms in the contest would get paid. This would arise from domestication of the ruling by the International Centre for Settlement of Investment Disputes based in Washington DC that found the lease between the government and World Duty Free was shrouded in bribery and was therefore illegal.
Regarding pending cases, it recommended that the government work with KAA to amicably finalise the matter of an award through arbitration of Sh4.3 billion to World Duty Free. It asked for joint assessors to be appointed by KAA to evaluate the actual losses from the eviction from Jomo Kenyatta International Airport of the duty free shops in 2013. This was to determine the credibility of the claim of Sh7 billion by the shop owners, meaning the owners would still be paid.
“KAA should expeditiously conclude all the global settlement agreements between it and World Duty Free/Dubai Duty Free and other duty free shops operators in order to save the Kenyan taxpayers costly litigation fees,” PIC concluded.
It also recommended the investigation of former KAA chief executive Lucy Mbugua, legal counsel Victor Arika and other present and past officials it accused of designing flawed contracts between KAA and duty free shop operators.
It recommended that former Transport and Infrastructure CS Michael Kamau be held individually responsible for failing to follow through on an agreement that would have settled the cases for good.
“This failure has exposed KAA and the Kenya tax payer to a contingent liability of not less than Sh17.15 billion,” it concluded.