In 2007, two couples — Peter Kiarie Muraya and his wife Susan (more famously known as Suraya), and Dr Samuel Mundati Gatabaki and his wife Nancy — came together to execute a grand idea.
The Gatabakis had something the Murayas wanted: 105 acres of land on Kiambu Road. The proposal was for the four to start a joint venture in which the Gatabakis would contribute the acreage and the Murayas the equivalent in cash. The name of the special-purpose vehicle would be Muga Developers Ltd, and through it, they would build Fourways Junction Estate.
Thirteen years later, the agreement has come a cropper, with the two parties accusing each other of fraud.
The Gatabakis claim to have unearthed a web of underhand dealings that have altered the original plan, saddled them with loans and put them at risk of losing all the land.
Documents recently filed with the High Court in Nairobi on the matter read like a thriller, with the Murayas accused of attempting to dispossess the Gatabakis of their land through forgeries, with the assistance of various government offices.
Dr Gatabaki and his wife say the Murayas lied about their ability to finance the housing project during the negotiation and execution of the joint venture agreement, and that all they wanted was access to the title deeds to use them as security to borrow money from banks.
“The joint venture agreement was structured on a 50:50 basis, the Gatabakis having yielded 105 acres of their land and the Murayas undertaking to inject monetary capital of equal value towards construction of the housing development on the entire 105 acres,” read the court documents. The 105 acres were to be hived from title L.R. No. 5980 measuring 200 acres owned by the Gatabakis.
The Gatabakis claim that since March 2018, when they first discovered the plot to defraud them, they, along with lands fraud investigator Anthony Macharia Gathatta, have unearthed multiple cases of forgery.
But in his rejoinder, Mr Muraya accuses the Gatabakis of lying. He says when they entered into the agreement, the Murayas discovered that the former owned only 47 acres of the land. They accuse the Gatabakis of filing a total of 16 cases against them, all with the aim of obfuscating and hiding the facts of the agreement.
“In the year 2007, Dr Samuel Mundati Gatabaki and his wife Mrs Nancy Wanja Gatabaki informed me that they owned the 200 acres of land. I was doubtful because they were operating in a kiosk selling chapatis to students of the school located in their original home as their main source of livelihood,” says Mr Muraya in his replying affidavit.
According to Mr Muraya, the Gatabakis are themselves “fraudsters pretending to be genuine land sellers”, adding that the criminal complaints they have made are part of a grand fraud scheme the Gatabakis have been operating.
According to the Gatabakis, some of the discoveries include a change to the original joint venture agreement to increase the Murayas’ shareholding in Muga Developers Ltd to 67 per cent while reducing the Gatabakis’ to 33 per cent.
Though the subject land is in Kiambu County, the Murayas acquired approvals from Nairobi’s central registry to allow them to build on the entire 200 acres.
“A surveyor by the name of B.M. Okumu, whose name is shown on the Muraya documents as the person who lodged them, has denied that he ever did so. Some of the plans are also shown to have originated from the Department of Survey but were never registered in the Ministry of Lands,” read the court documents by the Gatabakis.
“The Memorandum and Articles of Association of Muga Developers Ltd have got the signatures of both Mr and Mrs Muraya patently forged both on the space for the Memorandum and on the space provided for the Articles of Association, to fraudulently crystallise the forgeries on the joint venture agreement. The incorporation of the said company was undertaken by the Murayas’ advocates, acting on (the Murayas’) exclusive instructions. The title and heading of the forged joint venture agreement consists of LR No. 4508 (never owned by the plaintiffs) and LR No. 5980/1, 5980/3 & 5980/4 (being fake subdivisions of the plaintiffs’ L.R. No. 5980).”
The Gatabakis add that the parcels of land captured in the forged papers go beyond 300 acres. They also say they do not know the advocate before whom the documents were executed, who goes by the name Vishnu Sharma. The change-of-user application from agricultural to residential was done under the cover of Pleng (K) Ltd, which the Gatabakis claim is alien to them.
“The Gatabakis assert that only the registered owners could apply for the said change of user, and even then, only for the area subject of the joint venture. A so-called supplementary agreement purportedly executed on October 1, 2011, not only contains the forged signatures of Dr Gatabaki but refers to a parcel of land yet again unknown to the plaintiffs, namely L.R. No. 5980/5/2,” state the documents.
Further investigations show that the Murayas took loans from two banks using the allegedly forged signatures of the Gatabakis. First, they got a letter of credit from I&M bank for Sh600 million — without Nancy Gatabaki’s signature though she is a signatory of the joint venture, and with the forged signature of Dr Gatabaki. Then they borrowed Sh1.5 billion from Equity Bank using the forged signatures of both the Gatabakis.
The Gatabakis also point a finger at Nairobi City Council and its successor, Nairobi City County, for being part of the fraud by “corruptly (issuing) consents and approvals for the improper change of user, subdivisions … and other alterations of the properties.”
They accuse the Director of Survey and the Chief Lands Registrar of dereliction of duty by disregarding the elaborate checks and balances provided by law, which, had they been applied, would have nipped the fraud in the bud.
They now want all transactions entered into by the Murayas revoked, the properties inside Fourways Junction Estate transferred to them and the Murayas prosecuted.
Mr Muraya, on the other hand, says they discovered that some of the land the Gatabakis claimed to own had been sold to individuals before the joint venture was signed.
“(The Gatabakis’) trend for over 40 years has always been to sign sale agreements, take deposits or full payment, then deny the agreement and chase the buyer away from site. This can be confirmed by numerous buyers of the land,” he says. He also claims the Gatabakis had not been paying land rates, which they were forced to.
The Fourways Junction project was launched in 2008 amid a lot of publicity. Mr Muraya says it was this publicity that caused dozens of buyers to come forward, all claiming to hold genuine sale agreements duly executed by Dr and Mrs Gatabaki. He said they faced numerous caveats that threatened the project. Mr Muraya further claims a supplementary agreement was drawn to include all those with genuine sale agreements.
Mr Muraya insists the Gatabakis were involved in every step, even clearing a Sh60 million loan they had borrowed from the Kenya Planters’ Cooperative Union until there was only 100 acres of land where the project was finally started.
