Category Archives: Corporate governance

Karuturi AGM 2018

As workers of the former Karuturi flower farm in Naivasha, Kenya, await the outcome of a new appeal of the long-running court case and receivership, the Karuturi Group held an AGM in India and passed new resolutions to turn round the company.

The Bombay Stock Exchange-listed Karuturi, the world’s largest producer of cut roses, had published an annual report ahead of the AGM. According to the notice and results of the AGM, the Group proposed to increase the authorized share capital of the company to meet their long-term capital requirements.

Karuturi also plans to allocate convertible warrants to new shareholders who are; IBelive Fitness Solutions who may end with 10% if they exercise all options, Eye-3 Info Media who may end with 8% and Srinivasa Retail who will end with 14.3%. Prior to the AGM, the three had no shares in the company while the promoters of Karuturi had 25% and other public shareholders had 75%, including Deutsche Bank with 5%.

Shareholders also voted to appoint Messrs K G Rao and Co as auditors of the company and the notes showed that the previous year’s figures had not been audited by the current year auditors who had then provided a qualified opinion due to non-filing of some tax returns by the holding company. Another resolution was to ratify the appointment of the daughter of the Chairman and MD Sai Rama Karuturi, who had joined the board in September 2017. The resolutions were all passed.

The company has primary borrowings with Axis Bank in India (third largest private bank in the country), ICICI Bank of India, Axis Dubai, and smaller borrowings at the Commercial Bank of Ethiopia, Zemen Bank and Lion Bank in Ethiopia.

The accounts provided an (incorrect) link to the long-running Kenya bank case and receivership in Kenya. There are mentions in the notes that Karuturi Kenya was wound up by a court order of March 2016 and the company did not have any outstanding tax demands in Kenya or Ethiopia 

In a statement, the Board Chairman wrote that the Kenya farm should soon be back in the company’s possession following workers’ protests to various government authorities and media attention fueled by Kenyans on Twitter. On Ethiopia, he welcomed the new leadership of Prime Minister Dr. Abiy Ahmed and mentioned that the company had withdrawn all cases against the government of Ethiopia, paid compensation to the workers, and entered new lease agreements with a view to resuming operations in mid-2019.

Flowers by the Lake: Karuturi and the Bankers

Kenya is known as one of the giants of the giants of the fresh flower world, producing roses, lilies and other carnations that are freighted around the world to be used as gifts, tokens of affection, and to spruce up weddings, offices and restaurants.

A large share of these flowers come from farms around Lake Naivasha, a tiny lake in the Rift Valley of Kenya about 90 kilometers Northwest of Nairobi.  Many of the farms are on Moi South Lake Road, which is also where most of the picturesque Naivasha tourist lodges are also located. The road is a bumpy, potholed road, one which seems illogical given the investments on each side of the road, that run into tens of millions of dollars of lodges interspersed with flower farms, that neighbour each other for almost ten kilometers. In between are small ramshackle town structures that are a common peri-urban feature across the country housing bars, chemists, mobile money agents and other shops. There are also schools named after flower companies and you may spot hundreds of school children playing football or lounging at break time as other kids walk towards their homes, along the road which has sparse traffic of flower company buses and land cruisers and minivans ferrying tourists to different lodges, with familiar names like Simba, Enashipai, Sopa, Pinkman, Crayfish and Crescent. There are also signs for land for sale, usually on the left side of the road, away from the prime lake shore and some with unfinished building structures, outcomes of a dream sold years ago of Naivasha as a place to buy a holiday home.

Then there appears a large group of greenhouses, on the right side of the road, the preferred side. But unlike other farms you have passed, you can see past the ever-present Naivasha thorn bushes and security fences, that the greenhouses plastic walls and roofs are torn, flapping in the wind.. Inside the compound looks overgrown, and devoid of busy activity at other flower farms.

This is Karuturi, a farm that has spawned a long-running case in the Kenya courts. It is not the longest, not by far.  If you spend time in Kenya’s courts you will discover there are cases, commercial and civil, that stretch as far back as ten, twenty, and even thirty years.

The case, Civil Suit No. 78 of 2014 of Surya Holdings, Rhea Holdings and Karuturi Limited, against CFC Stanbic Bank collectively known Karuturi case is a unique one. One that has roped in banks in Kenya and India, landowners, flower pickers, workers unions, schools, two receiver managers, audit firms, suppliers and government agencies.

 A summary of the case events:
  • December 2012: Stanbic advances facilities to Karuturi; with the main loan to be repaid over five years. The facilities are secured by guarantees from directors of Karuturi as well as Rhea Holdings and Surya Holdings, related companies which are the registered owners of the land parcels the farm was situated on, The first repayment was made in January 2013 but then none was made for the next three months in succession.
  • January 2014: Stanbic obtained an advisory opinion which showed that the Karuturi farm was insolvent, its financial accounts were questionable for 2012 and it appeared the directors of Karuturi had abandoned the farm. They advised that putting the farm under receivership was the only way to stop further degradation of the assets. as the farm had stopped sales and production of flowers at Naivasha in August 2013.
  • February 2014: Stanbic places Karuturi in receivership and appoints Kieran Day and Ian Small as Receivers and Managers.
  • February 2014: Receivers advised the bank to move to dispose of the farm as soon as possible and to preserve assets by continue trading.
  • March 2014: Karuturi sues to challenge the appointment of receivers and stop the sale of the charged properties.
  • June 2014: Court rules that the appointment of receiver managers was proper. It also restrains the receivers from selling the charged properties (Rhea’s LR 10854/60 and Surya’s LR’s 12248/20, 12248/21, 12248/38, 25261 and 25262)
  • Karuturi was reported to have been relocating to Ethiopia in March 2014  in what was seen to signal a loss for Kenya as a preferred flower growing powerhouse.
  • October 2014: The Receivers create a company called Twiga BV to facilitate the sale of Karuturi flowers to the Netherlands and to receive revenue in order to pay expenses, staff and suppliers of the business. This came after Karuturi BV had been declared insolvent.
  • October 2015: One of the Receiver Managers is relocating from Kenya and the firm resigns. The bank appoints Muniu Thoithi and Kuria Muchiri of PWC as the new receiver-managers. Twiga was transferred to the new receivers at the end of 2015.
  • March 2016: In a hearing of a case filed to wind up Karuturi, and with lawyers for Polythene Industries, Agility, Ivaco, Inter Label, ICICI and Stanbic, the lawyers for Karuturi side with the winding up clause and allowed this process to proceed.
  • October 2016: A High Court judge finds that Karuturi had admitted (in March 2016) that they owed the bank $4M and Kshs 2.7 million before the receivership and that Surya and Rhea had provided securities to secure this debt. The court also directs that an independent forensic audit be done on business and operational transactions during the receivership period and look at items such as the expenses paid by the bank, repayments by Karuturi to the bank, balances outstanding, exports and production, payments to workers, tax payments, status of assets bought or sold during the receivership inventories, and compare the performance of the company between 2007-2012 to the receivership period.
  • November 2016: The suit parties settle on Deloitte to do the audit.
  • August 2017: Karuturi applies to the court seeking to pay $3.8M and Kshs 2.7 million within sixty days and have the bank release the land titles of Surya and Rhea.
  • October 2017: The audit report to the court reveals that, in addition to the debt owed before the receivership of $6.2M, another $9.4M had been spent during the receivership. The audit showed that 403 million good quality roses had been harvested (between February 2014 and May 2016), 2% of which could not be accounted for. Altogether in 2015 and 2016 Twiga received $23.6 million and paid $23.5 million for vendor expenses and administrative functions. Also, the assets of the company were intact, contrary to a Karuturi claim that the receiver managers had run down the assets of the company and it dismissed many of the accusations of Karuturi including that on transfer pricing and found that the receivers had not engaged in misconduct. The audit also found that the last known date of production at the farm was early in May 2016 and that the farm was descending into disrepair as costs continued to be incurred in preserving it.
  • October 2017: ICICI Bank of India wins a separate demand for $40 million from Karuturi.
  • January 2018: Courts rule that the receivership was proper and that Karuturi directors should pay the pre-receivership debt of $4M and Kshs 2.7 million, with interest, within 60 days. Also that, within 90 days, they are to pay $6.3M owed to creditors during the receivership and $6.7M advanced by the bank during the receivership period up to December 2016 and another $0.97M of receivership expenses incurred the following year to July 2017.
  • March 2018: Reports that an American company, Phoenix Group, has invested an undisclosed sum, said to be $2 billion, in Karuturi Global to help it pay its debts and revive its Kenya operations.

  • May 2018: The Receiver Manager of Karuturi (in liquidation) puts the movable assets of the company on sale. These include 1,400 steel greenhouses, vehicles, refrigeration and irrigation equipment. The land they occupy at Moi South Rd, Lake Naivasha is not part of the transaction.
  • Later in the month, Karuturi appealed against the court judgment and sought to terminate the receivership and also stop the sale of assets.

  • September 2018: The case is due for hearing this month. In the meantime, Kenya has enacted new company laws and insolvency laws. The main difference is that whereas before a receiver manager would act in the interest of the bank, they are now mandated to act on behalf of the bank and all creditors of the company.

Draft banking conduct and consumer finance laws in Kenya

In a move that may weed out practices that led to the introduction of interest rate capping, the Kenya government has developed a draft Financial Markets Conduct Bill for consumer finance protection.

Some clauses in the bill of interest:

  • Advertising: A person without a financial conduct license cannot put out an advertisement for the provision of credit. This also applies to building owners (billboards?), or in newspapers, magazines, radio, television.  Also, lender advertisements must be truthful. They cannot be misleading by deception.
  • Credit Limits – cards/overdrafts: Once a credit limit is approved, a financier can’t reduce the credit limits or decline to replace a lost credit card
  • Credit ReferenceNo release of  credit reports to unauthorized people
  • In-Duplum: There is also roundabout way of reintroducing the in-duplum rule. There is a clause that if a loan goes into default, the interest, fees, and other charges to be repaid cannot exceed the balance of the loan on the day it went into default.
  • Insurance: Loans cannot require a borrower to get insurance from a specific company.  
  • GuarantorsThe new laws protect guarantors and requires that they be made aware of all clauses in loan contract before they give guarantees, and with no variation to guarantor terms allowed. This is probably inspired by one guarantor and default dispute involving a cousin of the President that has seen over a dozen cases litigated in several courts over 25 years.
  • Pre-Receivership Management:  The Central Bank of Kenya (CBK)  can appoint a person to assist an institution to implement its directives when the CBK believes a bank or its officers are not in compliance with the act. The new law provides tools to assist troubled banks without shutting them down, and CBK can also order some shareholders to wind down their interest in institutions within a specific time.
  • Spam messages? Bank shall not communicate marketing messages to customers unless the customer loan agreement authorizes it.  
  • Statements: Requires all borrowers to be given term sheets before signing for loans, and a  copy of the loans contract afterwards. They are also entitled to a free statement every six months and other copies within ten days of a request.
  •  Variations: loan agreements shall not have clauses to vary interest during the loan, or be based on a different rate other than the reference rate of the lender.  
  • Wide Regulation: The new laws will apply to all providers of more than fifty loans and issuer of loans have six months to obtain the new licenses. What of loan apps?

Whether this new law which cracks down on unsavoury banking and consumer finance and behaviors will ease out the 2016 interest rate capping law while assuring parliamentarians who  championed the setting of maximum interest rates that bank behaviour will be better-regulated remains to be seen. Also if the clauses will help borrowers who have shifted to other more expensive lending platforms regardless of the consumer finance terms and interest rates charged there.

But the bill also creates a host of new financial regulators including; (i) a Financial Markets Conduct Authority (ii) Financial Services Tribunal (iii) Conduct Compensation Fund Board (iv) Financial Sector Ombudsman (v) an Ombudsman Board who may trip over other existing financial regulators.The bill is in the public participation stage and interested persons can send in feedback on its clauses to ps_at_treasury.go.ke before June 5.

Kenya’s Money in the Past: Bethwell Ogot Footprints on the Sands of Time

My Footprints on the Sands of Time is an autobiography by Professor Bethwell Ogot (wikipedia),  an eminent academic scholar. It is a tale of a young man overcoming incredible hardships, and going through early schooling at Maseno, and later through winning scholarships and prizes, on to excelling at Makerere, St. Andrews (Scotland) and teaching with Carey Francis at Alliance High School. It also touches on his work and roles in the establishment of the University of Nairobi, and Maseno University, and at his travels to present papers and speak at prestigious conferences and other institutions across the world.

Ogot narrates tales on growing up in Luo culture, seeing emerging economic changes e.g. he took a honeymoon trip to Uganda in 1959 traveling on first class from Kisumu to Kampala via Nakuru, a twenty-seven-hour train journey. Later, when his father died on August 30, 1978, this was the day before Kenya’s first president Mzee Jomo Kenyatta was to be buried, and it was a period when the sole broadcaster – the Voice of Kenya refused to publish any other death announcements, newspapers would not publish any other obituaries as a sign of respect to Kenyatta, and coffin-makers were not willing to make any other coffins.

He was close to former schoolmates, who were now in government and its leaders. Ogot was waiting to meet Tom Mboya for lunch at the New Stanley Hotel when Mboya was shot (his death was not unexpected to his friends), and Ogot had an encounter with Mboya’s killer who was fleeing the scene.  He writes of his work to establish and get government and financial support for the Ramogi Institute of Advanced Technology – RIAT and a delicate dance with community leaders including Oginga Odinga who was firmly out of government.

The book has a wealth of information on corporate governance and management from Ogot’s time at regional bodies, parastatals, international organizations, donor-funded ones, universities that were in slow decline and government. He writes of working in research and publishing, and struggling to document and publish African history. Also of his times at the East African Publishing House that published books on political science, history, geography and a modern African library with much opposition from British Publishers who controlled publishing and later from government officials who set out to shut down independent academic stories. They published Okot p’Bitek’s Song of Lawino that some critics considered a terrible poem ahead of its publication but which went on to be celebrated and sell over 25,000 copies.

There are also stories of navigating the East African Legislative Assembly, travels around East Africa, interacting with leaders and observing actions that were either supporting or undermining the East African Community. Uganda’s President Amin spoke of supporting the community even as he launched Uganda Airlines that he said would only do domestic flights in Uganda. There was also the importation of goods for Zambia through Mombasa that undermined the Dar es Salaam port and the Tazara railway, so Tanzania banned Kenyans trucks with excess tonnage from using their highways, and Kenya retaliated by closing its border with Tanzania. Officials in different countries also tried to keep community assets from leaving their borders, and Kenya grounded planes and withheld fuel of East Africa Airways which owed money to Kenya banks in a move designed to hurt vast Tanzania the most.

The most shocking tales are from his time working at the Museums of Kenya and its spinoff that saw Ogot as the first director of The International Louis Leakey Memorial Institute for African Prehistory – TILLMIAP (see an excerpt). It is a serious indictment of Richard Leakey who regarded TILLMIAP as his personal family fund-raising institution and who, with the support of Charles Njonjo in government and diplomats and donor agencies, warded off transparency and Africanization efforts – and was eventually to hound Ogot out of the institution.

Another tale is of when, as the candidate representing Africa on the executive board of UNESCO, he ran for the Presidency of the General Conference. But what should have been a formality of confirming his position became a long process after a surprise Senegalese candidate emerged to run against him – and France lobbied Francophone countries to only vote for a French-speaking African candidate, rules were changed, documents forged, and additional multiple election steps added before Ogot finally won.

The 500+ page book by Prof. Ogot does not have an index, but it’s worth reading all over again.

Kenya’s CBK risk safeguards against bank laundering and terror financing

The Central Bank of Kenya (CBK) has published new guidelines to assist Kenyan banks to assess and mitigate the risk that their institutions and systems may be used for money laundering (ML) or terrorism financing (TF).
They risk rules stipulate, among other proposals that:
  • Senior management of banks are to implement board-approved money laundering/terror financing policies.
  • Bank staff are to prepare periodic reports on money laundering and terrorism finance for their senior management and boards of the bank and also communicate these to the CBK. 
  • Financial institutions will be required to appoint a money laundering reporting officer who will be the point of contact for CBK.
  • Banks should assess and rank TF and ML instances and actions in terms of high, moderate, and low risk. 
  • They should identify countries and regions that are high risk for business; high-risk includes countries subject to sanctions from the UN and other credible organizations, countries that don’t have appropriate banking safeguards and countries known to sponsor terrorism.
  • Banks are to assess their customers for money laundering and terror financing risks; suspicious customer activities include frequent and unexplained movements of money to other accounts, or other institutions, and to far locations. They should also look at politically exposed persons who bank with them including prominent public figures, senior politicians, judicial officers, corporate CEO’s who dealing with them, or their families, may bring a reputational risk to the bank.
  • Banks are to assess their service delivery channels for money laundering risks. They are to pay attention to cash-intensive businesses, including supermarkets, convenience stores, restaurants, retail stores, liquor stores, wholesale distributors, car dealers. 
The guidelines follow an earlier directive on paper bag banking from two years ago. The new ML and TF rules are in draft form and bankers and any interested persons are invited to send comments to the CBK on the proposals before January 31, 2018.