The anti-corruption agency is in court seeking to recover prime government land and a residential building meant to house top judicial officers in Kileleshwa, Nairobi.
The Judiciary lost ownership of the property after it was allegedly grabbed and sold in September 2022 at Sh120 million to Gaschan Holdings Limited, whose director is Salah Mohamed. The property is currently valued at Sh170 million.
Mr Mohamed purchased the property from Francis Ndung’u Njoroge, who had ownership documents including a genuine lease certificate and allotment letters issued by the Ministry of Lands.
The details have been revealed in a recovery suit filed by the Ethics and Anti-Corruption Commission (EACC) at the Environment and Land Court Milimani, Nairobi, seeking to recover the land and the building.
According to the court documents, the alleged grabbing was discovered after Justice Judith Omange, who was occupying the house, was served with an eviction notice in June 2023.
The Milimani Law Courts in Nairobi.
Photo credit: File | Nation Media Group
“On June 21, 2023 Justice Omange received a letter from Gaschan limited signed by Mr Mohamed as the chief executive officer. The said letter demanded that the judge vacates the house on allegations that it is owned by the said defendants (Gaschan Holdings and Mr Mohamed),” says the EACC.
The house, registered as HG 629, was allocated to the Judiciary in 1984 by the Ministry of Public works and Housing as a staff residential house and since then has been occupied by various judges.
EACC investigator Caroline Kimathi says the change of ownership was executed through fraudulent alienation of the land and alteration of records at the Ministry of Lands.
She says the scheme started in 2021 with forgery of allotment letters and backdating of the same to September 1998 with a view to bypassing the involvement of the National Land Commission.
Then followed falsifying records to facilitate the alienation and acquisition of the property and eventually issuance of the lease certificate to Mr Njoroge and Gaschan Holdings.
Later on September 1, 2022, the Land Administrative officer in Nairobi at the Ministry of Lands and Physical Planning, Peter Nzuki Mutwiwa executed and caused Mr Njoroge to be issued with a 99-year lease certificate with effect from September 1, 1998.
“By purporting to rely on a letter of allotment allegedly issued over 26 years ago and backdating the lease, Mr Nzuki thereby excluded the National Land Commission which is constitutionally established to protect and manage public property,” narrates the investigator in the court papers.
Just how safe are your important land ownership and transaction documents at the lands office? PHOTO | FILE
After two months, on November 22, 2022 Gaschan Holdings was registered as a private limited company with Mr Njoroge as the sole shareholder and director.
The following year in June Mr Njoroge closed a Sh120 million deal with Mr Mohamed and sold the property. He also transferred his shares at Gaschan to Mr Mohamed.
The investigator says the documents and information gathered from the State Department of housing indicate that at the time Mr Njoroge sold the land to Gaschan the lease certificate had not been issued. The sale agreement is dated July 9, 2021.
The property was transferred to the company on June 2, 2023 and a certificate of lease issued on the same day.
At the time of transfer Mr Njoroge was the sole shareholder of the company, but he resigned five days later and transferred his shares to Mr Mohamed, leaving the latter as the sole shareholder and director.
“Being alienated government land, the suit property was not available for allocation and the purported issuance of lease to Mr Njoroge was fraudulent, illegal and null and void. It was incapable of creating a good title over the suit property. Similarly, the purported transfer to Gaschan is a nullity as Mr Njoroge was incapable of passing good title or any interest in the suit property,” says EACC lawyer Ruth Kemunto.
The lawyer contends that Gaschan, Mr Mohamed, Mr Njoroge and Mr Nzuki jointly conspired to illegally alienate the suit property and create a series of transactions to enable Gaschan claim that it was an innocent purchaser for value without notice.
“Gaschan failed to undertake proper due diligence prior, in acquiring the suit property in view of the fact that there was a government house on the said parcel of land which existed earlier than the title registered in their favour. The issuance of lease by the Land Administrative Officer over the suit property was unconstitutional, illegal, fraudulent, null and void and could thus not confer on the defendants any estate, interest or right in or over the suit property,” says lawyer Kemunto.
She claims the four defendants colluded to defeat government's interest in the title to the suit property by shutting their eyes to obvious fraud and ultimately acquiring a property they knew to be public land.
Among the bundle of documents filed by EACC in court to support the recovery suit, is a circular by the Permanent Secretary Ministry of Lands and Housing dated August 18, 2004 indicating the house was not among those listed for sale to civil servants. This was because it was an institutional house allocated to the Judiciary.
EACC wants the court to declare that the property is public land and that the alienation without the involvement of the National Land Commission was illegal. The land is registered as Nairobi Block 21/158 (Formerly LR No. 209/11900 and LR No. 209/11895).
It also wants an order directing the Chief Land Registrar to cancel and expunge from the register the entry relating to the registration of the land in favor of Mr Njoroge and the subsequent transfer to Gaschan Holdings.
The commission says despite the demand made, the defendants have failed to surrender the documents of title for purposes of cancellation, necessitating the filing of the court case. The defendants are yet to file their court responses to the claim.
