Olympic champion bought Karen land in 1996, court now says title was for Nyandarua

In 1996, Paul Ereng, an Olympic Gold medalist bought 0.3824 Hectares of land from Col. Gabriel Atambo allegedly situated in the leafy suburbs of Karen Nairobi County through an oral agreement.

However, 23 years later, the High Court in Nairobi established that the title document of the purchased land belonged to a land registered in Kijabe Nyandarua County.

Ereng, the 1988 Olympic gold medalist who represented Kenya in the Summer Olympics in Seoul, South Korea purchased the said property for Sh2 million.

In 2012, Ereng discovered the land valued at Sh35 million at the time had been systematically reverted back to the government for a new grant without his knowledge.

Swisscom Logistics Limited claimed lawful ownership of the land it claimed to have acquired April 1997 through a letter of allotment and later received a Government of Kenya Grant (IR 144196) registered in April 2013.

Swisscom sued Ereng accusing him of trespassing and demolishing structures on the said land.

In 2019, Justice Bernard Eboso determined that the said land belonged to Swisscom and ruled that Ereng was an innocent buyer who had been sold the wrong land title by Col. Atambo.

The same verdict was upheld by the appellate court which ruled that Ereng failed to prove the suit property had ever been allotted to Col. Atambo or that a valid title had passed from Atambo to him.

Justices Justice Patrick Kiage, A Muchelule and Korir said that the land documents transferred to Ereng by Atambo belonged to a land registered in Kijabe Nyandarua County and had no legal validity over the Karen land owned by Swisscom.

The judges further found that there was no sale agreement between Atambo and Ereng and the transfer instrument relied upon was undated, unstamped and unregistered and contained inconsistencies regarding the purchase price.

Justice Kiage also noted that Ereng failed to conduct any official search before purchasing the property.

“This Court further hold that the transfer instrument relied upon by the appellant (Ereng) related to Grant No. I.R. 52888, which official records showed related to a parcel of land in Kijabe, Nyandarua County rather than the suit property in Karen,” said Justice Kiage.

The judges upheld the verdict that the subsequent alteration of the title number from I.R. 52888 to I.R. 52887 was irregular and unsupported by the applicable statutory procedure.

The apex judges also dismissed Ereng’s application seeking to move the Supreme Court for determination of the legality of the processes through which titles are issued, transferred and rectified by public officers.

Justice Kiage said that the intended appeal at the Apex Court does not raises any matter of general public importance warranting certification but directly or indirectly, a reconsideration of concurrent findings of fact made by the ELC and affirmed by the appellate court.

According to Ereng, he was issued with a grant number I.R 52888 which was later altered to grant number 52887.

The Olympian admitted that there was no sale agreement between him and Col. Atambo, no official search confirming Atambo’s ownership, no evidence of assessment or payment of stamp duty, and no evidence that the transfer instrument had ever been registered.

Ereng’s witness, Joseph Gicovi who brokered the transaction between Col. Atambo and Ereng did not produce documentary evidence proving that Col. Atambo had acquired a valid title or complied with any allotment conditions.

Also failure to call Atambo to testify sealed Ereng’s legal claim to the land.

In his defense, Ereng relied on his title deed, an undated transfer instrument, correspondence relating to an alleged allotment to Col. Atambo, evidence that consent to transfer had been granted, and evidence that he had paid rates in respect of the property.

Ereng told the courts that he acquired the land through an oral agreement between him and Atambo in 1996 before the amendment of section 3(3) of the Law of Contract Act in 2003 is settled.

He said that the discrepancy in the title numbers resulted from an inadvertent error which was properly rectified by the Lands Registry and that, because Col. Atambo’s title predated the respondent’s title, the suit property was no longer available for allocation to Kipchumba or Swisscom.

According to Swisscom Logistics Director, Paul Kipchumba the land was allocated to them in 1997 through an allotment letter, a year after Ereng bought the said land from Col. Atambo.

Kipchumba said they4 were issued with a grant number L. R .144196 and later subdivision into L.R. Nos. 13815/2 and 13815/3 situated in Karen.

Kipchumba was supported by Julius Maroa, a Senior Lands Registration Officer, who confirmed that the suit land had been allocated to him and later registered to Swisscom.

Maroa testified that there was no record showing that the land was ever allocated to Atambo.

In his intended appeal before the SC, Ereng sought to raise issues of the legality of land acquisition processes, the evidential burden borne by registered proprietors, the powers and duties of land registrars, rectification of titles, competing titles, and the legal effect of procedural irregularities in land registration.

Ereng through his lawyer Mercy Munyao said that there were material discrepancies regarding the registration of Swisscom’s title, particularly as to whether the logistic company’s incorporation documents and CR-12 had been furnished to the Lands Registry before the title was issued.

She said the discrepancies raised legitimate concerns regarding the verification of documents by Land Registrars before registration and the validity of titles issued in circumstances where statutory procedures may not have been fully complied with.