Four Kenyans of British origin have been charged with several criminal offences over the alleged fraudulent disposal of trust property worth more than Sh600 million.
The suspects, Annelise Lulu Archer Clark, John Christopher Clark, Hellen Kay Hartley and Richard Hartley, are aged between 65 and 67. The four appeared before a court in Mombasa where they denied several charges, including conspiracy to defraud, fraudulent disposal of trust property, obtaining registration of titles by false pretence and perjury.
According to the charge sheet presented in court, the four are accused of conspiring to defraud beneficiaries of trust properties known as Kwale Diani Beach Block 806, 807 and 808.
A view of Diani Beach on Kenya's Coast.
Photo credit: File | Nation Media Group
The prosecution told the court that on diverse dates between 2017 and 2021, at an unknown place within the country, the suspects jointly conspired to defraud the beneficiaries, James Howard Archer, Joana Trent and Robert Archer, of the trust property.
The court heard that the accused subdivided the three trust properties into six plots through deceit and later fraudulently disposed of them to three companies, Snapdragon Ltd, Kamakawaida Properties Ltd and Baroness Holdings Ltd.
Two other individuals named in the charge sheet, Christine Inger Clark and Peter Mutwiwa, were not present in court when their accomplices were arraigned. In the second count, the accused are charged with fraudulent disposal of trust property contrary to the law.
The prosecution alleges that during the same period, while at the law firm of Muthama Advocates, the suspects jointly and with intent to defraud subdivided the three trust properties into six separate parcels and later fraudulently disposed of them to the three companies for a total of Sh600 million.
The charge sheet states that the suspects knew the transactions were false and were meant to defraud the lawful beneficiaries of the trust property. They also face a third charge of obtaining registration of titles by false pretences.
The State alleges that between 2017 and 2021, while at the offices of the Director of Land Administration headquarters in Nairobi, the suspects jointly and wilfully procured the subdivision of the three trust properties into six parcels.
They are further accused of causing the registration of new titles for the subdivisions by falsely pretending that they were the lawful beneficiaries of the trust property, which the prosecution says they knew to be untrue.
In addition to the charges facing the group, Ms Annelise faces a separate charge of perjury. The prosecution alleges that on November 8, 2021, in Mombasa, during proceedings in Court of Appeal Civil Case No 39 of 2020, she swore a false replying affidavit.
In the affidavit, she claimed that the six subdivisions had been transferred to Snapdragon Ltd and Kamakawaida Properties Ltd for valuable consideration on December 3, 2019, a claim the prosecution says she knew to be false.
The four suspects denied all the charges when they appeared before the Mombasa Magistrate's Court. They were each released on a bond of Sh1 million with an alternative cash bail of Sh300,000.
They were also ordered to deposit their Kenyan passports in court. The criminal case follows a long running civil dispute within the family that began in 2012 at the Environment and Land Court and ended at the Court of Appeal of Kenya in 2023.
In the civil suit, James (deceased and represented by Linda Hamilton Archer )
They argued that the properties were held in trust by Christine, Annalise and Hellen.
James and Trent, who were the appellants in the Court of Appeal matter, told the court that the land originally hosted a property known as Diani House and had been acquired in the 1960s following a family agreement among the siblings of the Archer family.
A picture of the Mombasa Law Courts| Pool
Photo credit: Pool
They said their father, the late Howard Archer, provided £5,000 as capital to purchase the property in 1967 on the understanding that the siblings would repay the loan over time.
The property was reportedly registered in the name of their brother, the late Christopher John Archer, because he was the only Kenyan citizen at the time and was therefore able to hold beach property under Kenyan law. The appellants maintained that the arrangement was that Christopher would hold the property in trust for the siblings.
They said financial records, correspondence and annual accounts circulated between 1967 and 1982 showed that the siblings repaid the loan and contributed to the maintenance and improvement of the property.
However, disputes emerged in the mid 1970s when Christopher allegedly attempted to subdivide the property without consulting the other siblings.
The respondents, Hellen, Christine and Annalise, who are the children of Christopher, disputed the claim. They argued that their father had independently purchased the property after obtaining a £5,000 loan from his father, Howard.
According to them, the loan was repaid and therefore did not create any beneficial ownership rights for the appellants.
They further argued that although the siblings occasionally contributed to the maintenance of the holiday home, those payments were merely loans or contributions towards upkeep and did not give them ownership rights.
They told the court that the intention of their father and grandfather had simply been to allow the extended family to use the house as a holiday home.
The court found that the money advanced by Howard constituted a loan to Christopher and did not give rise to a beneficial interest in the property.
The judge also ruled that the evidence presented, including loan repayments, financial statements and correspondence, was insufficient to prove that the property was held in trust.
In addition, the court held that the claim had been brought too late, noting that the dispute dated back to 1976 and was therefore barred by the doctrine of laches and the limitation period under the Limitation of Actions Act.
James and Trent then moved to the Court of Appeal, where they argued that the Environment and Land Court had misdirected itself on the facts and issues arising in the suit, misinterpreted and misapplied the law on trusts, and misinterpreted and misapplied the law on laches.
During the pendency of the appeal, James and Trent were allowed to adduce additional evidence to show that the suit properties had since been subdivided into eight parcels of land.
In 2023, the Court of Appeal allowed the appeal by James and Trent, overturning the decision of the Environment and Land Court. The appellate judges found that there was sufficient evidence demonstrating a common intention among the siblings that the property would be held in trust for the family.
The judges said documents and correspondence on record showed that the siblings contributed financially to the purchase and maintenance of the property and did so on the understanding that they had beneficial interests.
The court concluded that Christopher had held the property in constructive trust for his siblings and that after his death, Hellen, Christine and Annalise continued to hold it in trust.
The Court of Appeal therefore set aside the earlier judgment and declared that they were trust properties and ruled that the beneficial interests were to be shared equally, with 25 percent allocated to Hellen, Christine and Annalise jointly, and 25 per cent each to James, Trent and Robert Archer.
The appellate court also ordered that the matter be returned to the Environment and Land Court for further proceedings, including an accounting of proceeds from any sale or transfer of the properties and determination of the amounts due to the beneficiaries.
