For further details kindly consult our advocate.
DEMAND LETTER FOR TORT OF CONVERSION of approximately 130 PIANOS property of BOL PIANO’S & VLEUGELS B.V.
BRYANT & Associates Advocates
BRYANT & Associates Advocates
Timothy I. A. Bryant, LLB (Hons), Gerry G. Gitonga, LLB (Hons),
University of London, Dip. in law (KSL). University of Nairobi, Dip. in law (KSL)
Eden Square | 7th Floor | Block 1
Chiromo Road, P.O. Box 27047-00100 Nairobi
Tel: +254 733 638563 firstname.lastname@example.org
Our Ref: TB/AA/BPV/07/20 Your Ref: 14th July 2020
To: Mr. Kinoti, Director of C.I.D, CID HQ, Kiambu Road, NAIROBI “by hand.”
Mr. Haji, Director of ODPP, ODPP Offices, Ragati Road, Upper Hill, NAIROBI “by hand.”
Ms. Alice Mumbi, NAIROBI “by WhatsApp No’s: +254702567707”, Wow Pianos Limited (Co Nos: PVT-GYU3G5G) P.O. Box 15238-00100, NAIROBI “by registered post.”
Dear Sirs and Madam,
Re: DEMAND LETTER FOR TORT OF CONVERSION of approximately 130 PIANOS property of BOL PIANO’S & VLEUGELS B.V. (hereinafter referred to as “BPV” having CCI No:32065036 and RSIN No: 805737054, (registered in Netherlands Chamber of Commerce)
We act for Ronald Gerdinus Bol (hereinafter “Mr. Bol”) and the private limited liability company called BPV, of Netherlands, and are instructed as follows. In brief, unless urgent remedial action is taken by yourselves, either jointly or severally, within the next seven (7) days, we shall sue you in the tort of conversion for (i) the return of all the pianos owned by BPV or (ii) the cash value of the said pianos. State officers who negligently perform their duties in regard to the property of BPV, without regard to the potential for economic loss or otherwise caring for the ensuing damage caused to BPV as a foreign investor, shall be sued in their private capacity and we shall make all strenuous efforts to ensure that the Office of the Attorney General does NOT represent them since this representation will be a further insult to the taxpaying Kenyan public.
The facts and supporting evidence (included herein as annexures) are as follows:
- BPV is a private limited liability company registered in the Netherlands and in
operation since 9/7/1997. The main activity of BPV is selling musical instruments. Mr. Bol is the sole director of BPV as shown by the duly notarised certified extract (by Mr. Drs G.A.E. Goossens, Notary Public, Gooise Meren, Netherlands) business
register extract, Netherlands Chamber of Commerce CERTIFIED by F.R.
Sweertmand, Central Manager of the said Chamber of Commerce. Copy of extract
attached marked “A1”.
- Our firm was appointed by Mr. Bol and by BPV to recover the assets sent to Kenya
under contract by BPV. The resolution appointing our firm is dated 23rd December
2019, and the execution of the resolution was duly certified by Mr. Drs. G.A.E.
Goossens, Notary Public, Gooise Meren, Netherlands.
- BPV conducts business in more than twenty countries in the world, including, inter
alia, Romania, UK, Ireland, Belgium, Luxembourg, France, Germany, Denmark,
Norway, Sweden, Poland, Russia, Bulgaria, Italy, Spain, Portugal, Greece, Cyprus
and Kenya. Its business of selling musical instruments is only conducted on the basis
of its general conditions, which were deposited at the Netherlands Chamber of
Commerce at Utrecht, Netherlands and were in force as from 1st September 2009
(this contractual document hereinafter referred to as “Conditions”. Copy of the BPV
general conditions are attached marked as “A2”.
The applicable conditions of trade
- Under Article 5 (A) of the Conditions, the opponent party (“purchaser”) is not allowed to pawn or sell the goods to a third party.
- Under Article 5(B) of the Conditions, if the opponent party/purchaser pawns or sells the goods to a third party, BPV regains the right of possession of the goods for the value of the original goods.
- Under Article 5(C) of the Conditions, in the event that the opponent party/purchaser
undergoes any the listed events (collectively similar to liquidation or non-payment),
BPV has the right to cancel any agreement and require the goods as its own with a
right to claim reimbursement for loss or damage.
- Under Article 8(A) of the Conditions, BPV retains ownership of the goods until full
payment by the other party.
- Under Article 8(B) of the Conditions, the other party is not allowed to sell or pawn the goods until BPV is fully paid.
- Under Article 8(C) of the Conditions, in the event the other party sells or pawns the
goods, BPV remains the owner of the goods.
- Under Article 8(D) of the Conditions, similar terms as in Article 5(C) apply.
- In 2011, Mr. Bol entered the Kenya market through a Kenyan registered company
known as Bol Holdings Africa Co. Limited. (Co No: CPR/2011/57923). BPV has
always retained a majority shareholding in Bol Holdings Africa. BPV delivered its BPV pianos under its usual terms and conditions to Bol Holdings Africa. In order to
facilitate business, Mr. Bol gave Ms. Mumbi a 40% shareholding gratis in Bol
Holdings Africa and paid her a monthly salary. Copy of the Bol Holdings Africa Ltd
certificate is attached as “A3”.
The tort of usurpation of corporate responsibility
- In breach of her fiduciary duty to the Kenyan company, not being satisfied with the receipt of her 40% shareholding gratis in Bol Holdings Africa Ltd, Ms. Mumbi
registered her own company in Kenya known as “BolPianos Limited” (hereinafter
“BPL”). She owned 90% of this company, with the remaining 10% of the shares
owned by her niece. BPL sold BPV pianos in the name of BPL. BPV never received
any payment from BPL for any of the pianos sold by BPL. Copy of the BolPianos Ltd
certificate (CR 12) (“CPR/2014/170019) are attached as “A4”.
- Ms. Mumbi acted in breach of her fiduciary duty as a director of Bol Holdings Africa, Ms. Mumbi competed in the Kenyan piano market against the interest of Bol Holdings Africa by using her company BolPianos to steal market share from Bol Holdings Africa. She also hid the existence and identity of Bol Pianos from Mr. Bol and BPV, her fellow director and shareholder in Bol Holdings Africa. This was also a tort of usurpation of corporate opportunity by Ms Mumbi because she made a private profit that came to her because of her position in Bol Holdings Africa Ltd.
Ms Mumbi theft and fraud
- As an example of one clear case of theft and fraud against Bol Holdings Africa Ltd, we relate the case of HedgeHog Limited. HedgeHog Limited deals in musical
instruments in Nairobi. It is a customer of Bol Holdings Africa Ltd. HedgeHog bought
pianos from Bol Holdings Africa Ltd and then paid by cheques drawn on its two
accounts held at Prime Bank Ltd and I&M Bank Ltd respectively. After BPV
suspected Ms Mumbi was a fraudster and a thief, it called for a payments analysis
from HedgeHog payments to Bol Holdings Africa Ltd.
- It was discovered that on 18th April 2019 and 29 May 2019 respectively, Hedgehog Ltd paid BolPianos Ltd (Ms Mumbi’s private company) vide cheques no’s 000798 and 000809 drawn on Prime Bank Ltd the amounts of Kshs 100,000/= on each
occasion. Bol Pianos did not supply pianos to Hedgehog Ltd, and the similarity of
names between Bol Pianos and Bol Holdings Africa Ltd permitted Ms Mumbi to
fraudulently convince HedgeHog to pay her private company for pianos sold to
HedgeHog by Bol Holdings Africa Ltd. In furtherance of the fraudulent scheme, Ms
Mumbi convinced HedgeHog to pay her private company BolPianos Ltd a cheque of
Kshs 100,000/= drawn on I&M Bank Ltd being cheque no: 001555. Copy of the
HedgeHog payments analysis is attached as “A5”.
- When Ms. Alice Mumbi was confronted by these thefts and other allegations of fraudulent conduct, she caused the accountant of Bol Holdings Africa Ltd, Naomi to steal the computer laptop of Bol Holdings Africa Ltd. Ms. Naomi is now working with Ms. Alice Mumbi at Wow Pianos Limited. Due to the theft of the company laptop, we surmise
that of the evidence of criminal conduct of Ms. Alice Mumbi and Ms. Naomi Mutua has been destroyed or hidden.
The coverup begins
- In order to chase Mr. Bol away from her Kenya and to cement her position as a vendor of pianos in Kenya, Ms. Mumbi corrupted various persons in the Kenya Police to lay baseless charges against Mr. Bol.
- The best example is the charge sheet. It reads, as pertinent to Mr. Bol, that on 14th
Day of August 2019, at an unknown place, etc., etc. made stamp impressions of
Caroline Ratemo and signature of Alice Mumbi. The offence is the forgery of official
documents contrary to s. 351 of Penal Code. Copy of the charge sheet annexed as
- The charge sheet falsely claims that Mr. Bol and others forged Alice Mumbi’s
signature and Caroline Ratemo’s stamp on the 14th August 2019, when infact the
alleged date is 14th August 2017. Annexed hereto and marked “A7” is a copy of the
CR6 and the extract of minutes of a board of directors meeting, upon which the
allegations are based.
- Leaving aside the question of motive, mens rea, etc., it turns out that Mr. Bol was not in Kenya on this specified date. Please see the extract of Mr. Bol’s passport
demonstrating his trips to Kenya, of particular note is his entry to Kenya on the 11th
March 2017 and exit on 29th March 2017 and his entry on 25th August 2017 and his
departure on 11th September 2017. Copy of Mr. Bol’s passport is annexed as “A8”.
- Mr. Bol also complained to the Kenya Police about the theft of pianos by Ms. Mumbi under OB No: 28/29/8/2019 at Gigiri. The pianos were taken away from the official premises of Bol Holdings Africa Ltd by Ms Mumbi and then sold on to third parties, including Wow Pianos. These sales were all conducted in violation of the Conditions of BPV since Bol Holdings Africa Ltd never paid BPV. It should be obvious by now that Bol holdings Africa Ltd, having failed to sell the said pianos to paying customers, would be in no position to pay BPV for these pianos since Ms. Mumbi took them.
- The Gigiri Police sent the inquiry file to the ODPP, but nothing happened to date. It is obvious that Ms. Mumbi holds significant sway over the Kenya Police and the
ODPP. In effect, Ms. Mumbi took BPV pianos out of the possession of Bol Holdings
Africa Ltd and started selling these pianos through another piano company called
Wow Pianos. Wow Pianos Limited sells pianos out of the Well Shopping Mall,
Langata Road, Karen [tel no: 0722-797128] and Hurlingham Branch, opposite
Hurlingham Park, Argwings Kodhek Road.
- On 21/11/2019, Mr. Mochere Advocate on behalf of Mr. Bol, wrote to OCPD, Gigiri Police Station, copy to I.G. Police, DCI, DPP. To date, the actions of the Kenya Police are simply to fail to investigate Ms. Mumbi, persecute Mr. Bol and to generally act in concert with the fraudster/thief Ms. Mumbi to maintain possession of the pianos and to facilitate her sale of stolen property. In criminal law, a sensible, reasonable
uncorrupted prosecutor would call the actions of the concerned public servants
within the ODPP AND THE CID as persons conspiring to handle stolen property.
Copy of the Mochere letter is annexed as “A9”.
- Ms. Mumbi then became a consultant with Wow Pianos and started selling pianos
originating from BPV under that trade name. Various name brands of pianos
advertised on the internet by Wow Pianos are manufactured by piano manufacturers
who have given the worldwide monopoly to BPV to sell these brands of pianos. Given
this is the case, Wow Pianos has no known method of obtaining these piano brands
from the manufacturers other than by receiving the BPV pianos, as stolen property,
and selling them on to unsuspecting members of the public. Copy of the manufacturer’s statements of origination and ownership are annexed as “A10”. BPV
is clearly listed as the sole agent to sell several brands of pianos in Africa. Each piano
therein has a brand name and a serial number. Any sale by Wow Pianos is a violation
of the Conditions since BPV was never paid any money for these pianos. We,
therefore, wonder as to the nature of the investigation that the Police/C.I.D. made of
- In order to simplify this matter, as an example, if a person, Mr. Y, complains to the Police with a statement and says that Mr. X stole his motor vehicle, would the Police not require first a copy of the logbook of the said motor vehicle showing that Mr. Y was indeed the registered owner of the motor vehicle? If the Police negligently failed to do that, but instead, solely on the word of Mr. Y, find, locate and arrest the said motor vehicle and hand it over to Mr. Y, what would Mr. X say? Consider the possible scenario where Mr. X then produces the registered logbook of the said motor vehicle.
Suppose further that after Mr. X provides the logbook, the Police ignore the evidence
and arrest Mr. X? Are the Police not guilty of obstruction of justice? What if the
Prosecutor is informed in writing of this situation but decides to sit on the file for nine
months? Is Mr. X not lawfully entitled to claim in a court of law that Mr. Y and the
Police and the Prosecutor are members of the same cartel conspiring to steal his
motor vehicle from him? What happens if Mr. Y has received the said motor vehicle
from the Police and driven it to Uganda or Congo? Would Mr. X not be entitled to
claim the Police and the Prosecutor should be arrested as the thieves of his motor
vehicle? Should the Police and the Prosecutor not be ordered to refund Mr. X the
cost of the motor vehicle plus costs and interest rate thereon?
- In summary, as a result of this theft with the assistance of the Police and ODPP, Bol Holding Africa Ltd is in debt to BPV to the value of € 985, 855. 50, please refer to annexure “A11” a copy of the bundle of documents which clearly sets out the debt.
If you refer to the conditions of sale annexure “A2”, and paragraphs 4-9 above, you
will note that the title of goods does not pass until payment is received in full. Ms.
Mumbi, with the aid of the Police and ODPP, have stolen the pianos from Bol Holding Africa Ltd. Due to the complicit nature of the actions by the Police and the ODPP, Bol Holding Africa Ltd is now devoid of assets and unable to settle its debt with BPV.
As a result, we hereby demand the return of the 130 pianos, in the alternative we
demand compensation for the full sale price of the said 130 pianos. Please find in
attached a list of 94 piano’s confirmed as seized by the police, in addition to 2 further
lists penned by Ms. Mumbi confirming her theft of 38 piano’s, annexed hereto and
marked as “A12”.
- Since the written complaints of BPV to all Kenya government institutions charged
under the constitution with management and supervision of the law and order sector
and oversight thereof have failed BPV, after several months of complaints and visits,
it can only be concluded that the law and order sector in Kenya is populated by
persons who deserve to be sued in tort, as their actions are obviously not amenable
to any criminal process. It is a shame that the law and order sector has been turned
into an instrument to deprive a foreign investor of its property, using the force of arms
in order to assist a thief to possess and hold property. It is a dire indictment on the
economic fortunes of Kenya’s unemployed millions, due to the negligence and sheer
indifference with which a foreign investor is treated by the law and order sector public
- We urge the DPP and the DCI to hold the public servants under their supervision to account and further discipline them by ensuring that the pianos are returned to BPV
within seven (7) days hence. In the event that this does not happen, we are already in
possession of instructions to file the appropriate legal proceedings against all listed
parties, jointly and severally, seeking orders for a return of all the pianos listed in
annexure “A12” to BPV within the next seven (7) days, and/or in the alternative, for
payment of the full cost of these pianos plus damages, exemplary damages, costs
and interest on costs in your private and personal capacities in the tort of conversion
and other applicable legal remedies. We trust that wise counsel will prevail, and that
evil counsel will be deflected.
BRYANT & ASSOCIATES
TIMOTHY I.A. BRYANT
Cc: EACC, Nairobi.