Investors Charles Nzioki Kanyaa, Harrison Kaloki Kanyaa, Robert Munyao Kanyaa, who had hired the powered Lawyer Kioko Kilukumi, have been directed by the Court to negotiate with Cytonn Investments first over delayed payout in the Cytonn High Yield Solution (CHYS).
Justice Grace Ngenye found that the investors rushed for litigation before exhausting all dispute resolution mechanisms spelt out in the investment contracts.
“I am of the opinion that parties having voluntarily entered into a contract, they are bound by the same terms of the contract and I am restrained from rewriting the intention of the parties,” said Justice Ngenye.
According to the contract documents, in the event of illiquidity necessitated by an act of God, such as Covid-19, the contract allowed for a force majeure declaration to manage liquidity. For investors who do not agree to Force Majeure, they are then allowed to go for arbitration.
The investors have been directed to agree with Cytonn on the number of arbitrators to appoint within 45 days.
The investors had sued Cytonn Real Estate Project Notes, Cytonn High Yield Solutions and Cytonn Investments Management PLC, seeking Ksh46 million in the principal investments and interest.
Following the outbreak of Covid-19, Cytonn was forced to halt the payouts, and extended the payment period for an initial period of three months, thereafter 12 months.
Cytonn senior legal associate Jennifer Solovea told the court that the parties had tried negotiations via email correspondences which were unsuccessful.
According to Cytonn CEO Edwin Dande, CHYS operated well for eight years, until Covid-19 hit the country in March 2020.
He blames a number of lawyers for misleading their clients to go to court, despite understanding that they had not exhausted alternative dispute resolutions allowed under Article 159(2) of the Constitution.
“There is no question that CHYS owes the funds, we have not denied that. There is also no question that cash is safe in real estate projects. The best route is for investors in CHYS to come together with the investment manager to agree on a plan that can monetize the assets and return money to investors as soon as possible. While the Courts, CMA and DCI are incredibly important institutions, there is really no role here for them, because no money is lost, it’s just that real estate is challenged in this environment,” said Dande.
In June, Cytonn took the Capital Markets Authority (CMA) to court for sanctioning criminal investigations against the company over its two money market products, the CHYS and Cytonn Real Estate Project Notes.
Investors who sunk their funds in the two offerings were forced to extend a moratorium on payments from the funds or alternatively take up a debt to real estate conversion across the 10 projects.