The New Times (Kigali)

25 November 2012

Rwandan in Row With Kenyan Company Over Rwf150 Million

For John Bosco Twahirwa, a Rwandan businessman, his quest for justice after 15 years has become a receding mirage.

Twahirwa, the proprietor of Saba Co., a Rwandan construction company, has expressed frustration over the way the Kenyan judicial system has failed to pursue a court case involving money owed to his company by a Kenyan firm.

Saba Co., registered in Rwanda, entered a sub-contract with Marshall Fowlers Engineering Ltd in 1996. The latter is registered in Kenya. The Rwandan company won a tender to rehabilitate all Marshall Fowlers' tea factories at Kitabi and Mata in the Southern Province.

Saba Co. executed all the works as agreed on in the sub-contract but upon completion, Marshall Fowlers did not pay as per the agreement. Saba Co. subsequently dragged the Kenyan firm to the intermediate court, a case which Saba Co. won.

Marshall Fowlers appealed in the Supreme Court of Rwanda but lost again and was ordered to pay arrears worth over Rwf150 million to Saba Co.

Speaking to The New Times, Twahirwa said that the judgment has since turned into a nightmare since Marshal Fowlers does not have registered properties in Rwanda.

"We have sought the intervention of the Kenyan government to help us resolve this case by ordering Marshall Fowlers to pay up but have encountered unnecessary hindrances. My plea is that just as Kenyan businessmen are protected in Rwanda, Kenya should reciprocate this gesture by protecting us, too," he said.

Consequently, Twahirwa sought the intervention of Rwanda's Ministry of Justice and, in a letter dated November 5, 2008, Justice Minister Tharcisse Karugarama wrote to the Attorney General of Kenya, requesting his office to facilitate the speedy execution of the case.

"Having observed that Marshall Fowler Engineers Ltd does not want to execute the case voluntarily; after providing that Marshall Fowler Engineers Ltd have no properties in Rwandan territory, we are honoured to request your high office to facilitate in execution of the case No. RCAA 0012/04/CS in Kenya because Marshall Fowlers Engineers Ltd has properties there," read part of the letter, which also highlighted the court decisions to be executed.

The letter, wrote and signed by Minister Karugarama, ordered the appellant company to pay Saba Co. Rwf51.3 million as the principle debt, as well as Rwf89.1 million to BCDI bank. On top of that, Marshall Fowlers was ordered to pay a proportional tax of 4 per cent of the sum to the Rwandan government.

When this paper contacted Rose Makena, Kenya's High Commissioner to Rwanda, for a comment, she stressed that she did not have information about the case between the two firms but insisted that Kenya always ensures that justice is served even to foreign nationals.

"There are commercial laws which must be followed and the Government cannot tell courts what to do because they are independent. I am not well versed with the case but I trust the courts to continue with the due process until they find a solution," she stated.

"In Kenya the judiciary is independent. If the law is on your side, then you will get justice, despite some delays. Rwanda and Kenya share a healthy relationship and our judiciary cooperates; so you cannot generalise from one single case."

In this case, Saba Co. won against Marshall Fowlers sums of money totaling Rwf149,179,568 - an equivalent of Ksh18,647,446 - in the Rwandan Supreme Court and in the Kenya Commercial High Court of Milimani. Several attempts have since been made to have the judgment executed - in vain.

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