None of five companies and individuals claiming ownership of 135-acre parcel of land in Karen estimated to be more than Sh8 billion are the true owners, a judge has said.
Environment and Land Court judge Oscar Angote said in a judgment that all the certificate of titles obtained by the parties was done fraudulently and directed the chief land registrar to cancel them and all the sub-divisions made to the land.
Justice Angote said save for the Public Trustee, he issued a permanent injunction restraining all the parties in the case, their employees or servants from trespassing or dealing with the land.
“An order be and is hereby issued directing the Chief Land Registrar to cancel and revoke all the Certificates of Title in respect of Land Reference Number 209/3586/3, and any sub-divisions thereof, which include, but not limited to L.R. Numbers 209/3586/202-398,” said the judge.
The controversial land was claimed by Muchanga Limited through Horatius Da Gama Rose; Mr John Mugo, former National Social Security Fund (NSSF) managing trustee Jos Konzolo through Telesource ltd; Jina Enterprises; and Mr Joseph Kangethe Wanyoike, who claimed to be administrator of the estate of Carmelina Ngumi Mburu.
Former Kitui governor Charity Ngilu was the Lands Cabinet Secretary when the scandal involving the land erupted and the Ethics and Anti-Corruption Commission (EACC) recommended her prosecution alongside others.
Although she was suspended from her position, the charges against Ms Ngilu were later quashed.
The anti-graft body had claimed that top government officials were among the beneficiaries of the land, which had been sub-divided.
Ms Ngilu was fired from her post after she appeared in a 2015 ‘list of shame’ tabled by President Kenyatta in parliament in 2015 over how she handled the land saga.
He argued that he purchased the land from Barclays Bank in 1983, as trustee of the late Arnold Bradley.
The company claimed that it bought the suit property from Barclays Bank (now Absa), which was as the executor of the estate of Arnold Bradley for Sh1.25 million.
Horatius Da Gama Rose, the executive director of Muchanga Investments, indicated that the negotiations with the Bank to purchase the suit property began in 1982, with the property being registered in the firm’s name in 1983.
But the judge said records tabled before court do not disclose the date when the property was sold or the purchaser of the land.
The judge said the records do not even show the receipt of the proceeds from the sale of the land and a witness from Barclays Bank (now Absa Bank) only stated that the process of transferring the suit property and payment of legal fees had been completed as at January 31, 1983.
“The Bank neither produced in evidence the sale agreement, evidence of payments nor the transfer document,” said the judge.
He said nothing would have been easier than for Muchanga Investments to call a witness from Barclays Bank to present proof of the sale of the suit property, or to produce this crucial document.
Justice Angote said the Bank on its part, through the Affidavit sworn by Mr Waweru Mathenge, other than stating that the suit property was sold, did not state to whom the land was sold, for how much and how the proceeds were applied.
The court said from several letters produced by Muchanga Investments, negotiations between Barclays Bank, the firm of Kaplan & Stratton Advocates, who were acting for the Bank, and Francis Da Gama Rose Advocates, the father of Horatius Da Gama Rose, the plans for the sale of the property began way back to 1977 and not 1982.
The judge said there was no evidence to show that any purchase price was paid by Muchanga Investments and acknowledged by the Bank, which was acting on behalf of the beneficiaries of the Estate of Arnold Bradley.
The judge then referred to a letter showing the purchaser’s advocate asking the Bank’s advocate to confirm that his client has until September 30, 1978 to furnish them with the consent for the change of user.
And although the letter of June 30, 1978 did not name the client, the letter was copied to a J. G. Mburu.
Justice Angote said in the absence of evidence to the contrary, the court would only conclude that the client who had paid the said sum was J. G. Mburu, who could as well be John Godhard Ichahuria Mburu, a former provincial commissioner- who died in 1981, and who was represented by Mr Wanyoike.
The judge said the late John Mburu had paid part of the price for the property, through his then advocate, and pursuant to the 1977 sale agreement, Barclays Bank forwarded the title of the suit property to the firm of Francis Da Gama Rose Advocates on September 7, 1978.
The judge said this led to the conclusion that Francis Da Gama Rose Advocate and Horatius Da Gama Rose, abused their positions of trust as advocates to their client as at December 16, 1977 and had the suit property transferred to their company, Muchanga Investment.
The court said unfortunately, the Estate of the J.G. Mburu, who was their client in question, cannot enforce the 1977 Sale Agreement because they neither have the Sale Agreement, nor evidence to show that the purchase price that was paid for the suit property passed to Barclays Bank as contemplated in the Will of Arnold Brandley.
“For those reasons, notwithstanding that the Plaintiff (Muchanga Investment) took possession of the suit property in 1983, and has been paying the requisite rent and rates, this court must conclude that the Plaintiff has failed to establish that it lawfully acquired title to the suit property,” said the judge.
The court said the root of Telesource Com Ltd’s title was tainted, as John Mugo Kamau could not possibly have acquired the property from Arnold Bradley at the time he claimed in 1978, Arnold had died in 1973. He said the title deed was null and void.
The judge said the late Carmelina Mburu informed the court that upon the demise of John Mburu and the appointment of the Public Trustee as the Administrator of his Estate, Mr Francis Da Gama failed to list the suit property as one of the assets of the estate.
“The court having declared all the titles that that were issued in respect of the suit property after the demise of Arnold Bradley were fraudulent, the suit property, being L.R No. 3586/3 measuring 54.39 Hectares (approximately 135 acres) should revert to the Executor of the Will of Arnold Bradley, and be administered pursuant to the provisions of the Law of Succession Act,” ordered the judge.
The court directed the Public Trustee to within 30 days of the delivery of the judgment, identify the beneficiaries of the estate of Arnold, if any, for distribution of land in accordance with the Law of Succession Act.
