Widow loses millions to fraudsters in house deal

By Alex Kiprotich

"Alex I am naked, I have been left naked... some of us just walk and people think all is fine. I have cried tonnes of tears in the confines of my house and my family has nothing else to lose."

This was the opening statement by Rosemary Gituma as she shook my hand at a restaurant on Mombasa Road. She has all reason to cry – she has been fraudulently dispossessed of a house she has spent all she had to buy. Not only has she lost her late husband’s estate, she is now in debt worth millions of shillings.

"I do not know who will help me. The developer I entered into an agreement with for a house in Karen has messed me up. Now I service huge monthly repayments since August 2008 and yet the property has been sold to someone else without my knowledge," she says.

Gituma says it all started in 2007 when Hass Consult put up an advert for houses it was developing in Karen and she identified one she liked. "I loved the location and the way it was designed," she says. The going price according to documents in our possession was Sh31.9 million. She paid Sh1 million on November 9, 2007, as booking fee to Ndege Gardens who were the sellers.

And buoyed by the prospects of owning a dream home for herself and five children, she on April 2008 paid another Sh6.5 million as deposit for the house to Hass Consult, as she worked on a way of paying the remaining amount, according to a payment plan they agreed with Hass Consult, which was acting as agents of Ndege Gardens.

"I used my late husband’s pension to raise the house deposit and applied for bank loans to cover the deficit," she says.

According to payment schedule on the offer letter presented to the developers, she was to pay the remaining balance in phases and depending on the progress of the house.

And as security, she was required to write postdated cheques, which Gituma did. Through Housing Finance, she took a loan of Sh10 million for the project.

To cover the balance she also got another bank loan where the Karen property and two other properties were to act as security. In one of the property the children were named as beneficiaries of the estates. This had to be discharged in the promise that the Karen property would include her children as beneficiaries.

"Now they are all gone in possession of the bank as a security," she says. She says her problems started when she engaged John Thongori of J Thongori & Company Advocates who was acting as the lawyer of the developer. This was after her previous lawyer’s firm also went under.

Final stages

This was in early 2009 when the house according to the timetable given by the developer, was nearing completion and which is confirmed by the documents in our possession, which the developer had undertaken to have it complete by June.

"For ease of the process to release the balance by the bank towards the project, I was advised to use the services of John Thongori who was also acting for the seller," she says. She says by then she had paid Sh17 million, and what was remaining was to be paid by the bank that wrote to J Thongori and Company Advocates but they did not get any response.

"We act for M/S Savings & Loan Kenya Limited who have agreed to finance the purchaser for the balance of the purchase price for the property under reference," reads a letter addressed to J Thongori & Company Advocates.

It adds, "We hereby give you our professional undertaking that we shall pay you a sum not exceeding Sh14, 800,000, being the amount advanced by our client within 14 days. But on June 30, 2009, Gituma received a letter from her lawyers that the completion of the house would be delayed until December.

"We have been instructed to write and inform you that practical completion of works will be delayed due to several factors whose consideration the project’s architect has extended to December 31, 2009," reads the letter by J Thongori advocates.

But even with this, documents in our possession show that by July 2010, the houses were not complete according to a letter by Farhana Hassanali of Hass Consult informing purchasers that they were in final stages.

"We are at the final stages of works, with a key milestone being the connection of main KPLC power to the site, which is currently not yet completed but in progress. We continue to actively chase this so that we are in a position to finalise handover," reads the letter by Hassanali who is a Hass Consult property development manager.

Gituma says she suspected something was wrong when buyers were told to contact the contractor for further modifications. Inquiries also by the bank according to documents in our possession show that they met with deafening silence.

"We note with a lot of concern that we have not received any update on the progress herein. Our letters that date as far as March this year are yet to elicit your response that we are finding quite frustrating on the very least. Particularly, whenever we call we are notified that your Mr Thongori, who is handling the matter is out of office and will get back to us later, which has not happened," reads a letter to the law firm by KCB lawyers Mohammed & Kinyanjui Advocates. Gituma says on January 27, she confirmed the worst when she was going through her letters and found one addressed to David Gachewa on her personal address and opened it by mistake.

"I almost collapsed. I couldn’t believe the house I have struggled to have has been sold and the following day I went to Hass Consult and John Thingori and Judy Thongori the following day and upto date I haven’t received any reply," she says. And during our investigations, we found out that the house was sold to Gachewa and Diana Mwanda for Sh44 million.

Breach of contract

"We have now confirmed that flat No. 6 was transferred to David Njoka Gachewa and Diana Mwanda as joint tenants on September 5, last year, for a sum of Sh44 million and later charged to I & M Bank for a sum of Sh24 million," reads a search documents in our possession by prominent city law firm. When contacted, Thongori said Gituma is involved in attempts to put pressure on what she is not entitled. "She should not use pressure.

Let her go to the High Court and file a case of breach of contract. It is only the High Court which can reverse the transaction and not the newspapers, Law Society of Kenya, or CID where she has gone," he said.

He added, "Up to now she has only paid Sh24.1 million and she cannot say she is entitled to the house. As a lawyer I handle up to 400 clients and won’t wish you to publish anything that will tarnish my name. She should go to the High Court, but not to the Press."