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Mungatana appeals order to refund Sh12m ‘soft loan’

KPA chairman Danson Mungatana is expected to deposit Sh6 million in court on Friday before he can be granted orders stopping the execution of a Sh12 million order against him, pending the determination of his appeal.

The High Court on Wednesday ordered Mr Mungatana to refund Sh12 million he received from Bungoma Senator Moses Wetang’ula five years ago.

Judge David Onyancha made the directive in an application filed by Mr Mungatana, who is seeking to stop the implementation of the judgment.

The judge also granted a temporary order stopping Mr Wetang’ula from demanding the money from him.

“The interim stay of execution is hereby granted until April 27, 2015 on condition that Mr Mungatana (judgment debtor) deposits a sum of Sh6 million on or before April 24, at noon. In default, the stay order to automatically stand discharged,” the judge said.

Mr Mungatana, who has already filed a notice appeal, had in his urgent application seeking stay orders, argued that since there are currently no interim orders of stay, Mr Wetang’ula may proceed with execution before his intended appeal is heard and determined.

GOOD CHANCE OF SUCCESS

He said he has a good chance of succeeding at the Court of Appeal, adding that his appeal, if successful, may be rendered irrelevant if Mr Wetang’ula is allowed to execute against him.

He urged Mr Justice Onyancha to consider his application having made it without unreasonable delay.

The facts before court were that Mr Mungatana, then Garsen MP, had approached Mr Wetang’ula (Sirisia MP at the time), for a friendly personal loan in 2010 and undertook to repay the same in 14 installments.

He gave Mr Wetang’ula 14 cheques drawn for encashment at his (Mr Mungatana’s) bank on dates shown on the said cheques.

However, the bank dishonoured the cheques because Mr Mungatana’s account lacked sufficient funds.

Mr Justice Onyancha noted that from the evidence presented in court, Mr Mungatana had indeed received the money but had not paid back.

“He has not denied or refuted the dates on the cheques,” he said.

HIGH RISK BUSINESS

Mr Mungatana had argued that the funds advanced to him were for an agreed “high risk business venture” and the facts were only known to him and Mr Wetang’ula.

However, the judge in his ruling said that for Mr Mungatana to rely on illegal contract in his defence, he would have to provide facts showing an illegal contract in which Mr Wetang’ula was a party and in which the advanced money was invested by both parties.

The matter relating to the application by Mr Mungatana seeking stay orders pending appeal, will be mentioned on April 27.