The Supreme Court has ended an 18-year legal battle over a failed Sh100 million investment, rejecting investor John Kiarie Kungu’s final attempt to revive his claim against Dyer & Blair Investment Bank and CFC Stanbic Bank.
The judges ruled that the dispute raised no issue of general public importance and could not be reopened after the statutory deadline had expired. The decision brings a definitive close to one of the longest-running capital markets disputes over investment management liability and the recovery of losses.
Mr Kungu wanted the court to review its October 2023 decision refusing him permission to appeal against a Court of Appeal judgment that overturned a Sh310.3 million High Court award.
The contested July 2017 Court of Appeal judgment had instead limited his compensation to one year’s returns on his Sh91.5 million investment at the 2003 Treasury bond rate of 10 percent, less contractual fees.
But in the unanimous ruling, the five-judge Supreme Court bench dismissed his application, holding that the application was filed more than two years after the ruling it sought to challenge, well outside the 14-day period allowed under the Supreme Court Act.
“It is therefore manifestly outside the 14-days timeline prescribed under Section 21(4) of the Supreme Court Act,” the judges said. “The applicant has not sought leave of the court to mount the application out of time, and therefore his application is unmeritorious on that account.”
The dispute dates back to an April 2003 investment agreement under which Mr Kungu entrusted Dyer & Blair with Sh100 million to invest in shares, treasury bonds, treasury bills and fixed deposits for a commission.
According to the court, he deposited Sh91.5 million, which Dyer & Blair invested with CFC Stanbic Bank.
Mr Kungu later sued the two financial institutions in 2008, arguing that the agreement had been breached. The High Court awarded him Sh310.3 million, together with interest at 16 percent a year from October 21, 2007 until payment in full, holding the respondents jointly and severally liable.
The Court of Appeal overturned key parts of that judgment in July 2017. It agreed that Dyer & Blair had breached the investment contract but ruled that damages could only be assessed for one year instead of four.
It also found there was no contractual relationship between Mr Kungu and CFC Stanbic and recalculated interest at 10 percent based on Treasury bond rates prevailing in 2003.
After the appellate court refused to certify the dispute as one of general public importance in 2023, Mr Kungu unsuccessfully sought a review before the Supreme Court.
His latest application argued that the judges had failed to review the Court of Appeal’s decision properly and had not fully applied the principles established in earlier Supreme Court decisions on certification.
He argued that the court had merely “‘noted’ the decision of the Court of Appeal rather than reviewing it” and had therefore acted “without constitutional competence.” He also claimed the omission rendered the earlier ruling “nullities for want of jurisdiction.”
Dyer & Blair opposed the application, arguing that it amounted to an attempt to reopen issues that had already been conclusively determined.
The bank told the court that the application was “an impermissible attempt to re-litigate settled issues,” adding that the applicant had failed to demonstrate the exceptional circumstances required the Supreme Court to revisit one of its own decisions.
The Supreme Court agreed, finding that he had failed to demonstrate that the issues in his intended appeal transcended his personal grievances.
The court added that Kungu had presented no new evidence showing the dispute rose beyond “personal grievances.”
The bench further found that Mr Kungu’s complaints amounted only to dissatisfaction with the outcome of the earlier decision.
“Such dissatisfaction does not meet the threshold for nullity and, by extension, cannot sustain a review under Section 21(4) of the Supreme Court Act,” the judges said. “The applicant herein is, in effect, asking this Court to sit on appeal over its own ruling.”
Concluding that the application was filed outside the statutory period, without leave, and failed to establish any exceptional circumstances, the court dismissed it drawing a final line under litigation that had spanned almost two decades.
