Judge rules Kabogo will not suffer any loss in paying Sh100m for trespass

NAIROBI, KENYA: Former Kiambu Governor William Kabogo has lost an attempt to put on hold a court directive to pay a city businessman Sh100 million in damages for trespass.

Kabogo had filed a notice of appeal on November 2, last year seeking to temporarily suspend a decision by Justice Elijah Obaga that he had forged documents to claim a Sh3.5 billion plot in Nairobi.

However in a ruling dated January 18, 2018, Justice Obaga failed to suspend his own decision saying the case lacks merit and that Kabogo will not suffer any loss in paying the damages as he fights in the court of appeal.

“As has been said now and again that the demonstration of substantial loss is the cornerstone of stay and having found that the applicant will not suffer substantial loss, I find the applicant’s application lacks merit. The same is hereby dismissed with costs to the respondent,” the 5 page ruling reads in part.

The judge ruled that Kabogo will not suffer any irreparable damage should he pay the money and succeed to overturn the ruling since Mr. Patel has the capacity to pay back the sum if ordered so by the superior court.

On 31st of October, the Land and Environment Court judge ordered Kabogo to pay Aster Holdings director Nayan Patel, the legitimate owner of the 7.5 acre land, Sh100 million for illegal possession and trespass, bringing to an end a 10 year tussle for the plot.

However through his lawyer, Nelson Havi the ex-Governor sort to have the judge suspends his own directive to await his impending appeal.

The ruling now means Kabogo will pay Patel about Sh132 million being the Sh100 million damages, Sh32 million legal cost for the main suit and for the dismissed application. Aster has indicated that it will file a bankruptcy suit should the former governor fail to pay the monies.

Mr. Patel through the law firm of Ahmednasir and Abdikadir moved to court in 2010 in civil case number 562 of 2010 and sued Kabogo’s firm Carogate Investment limited, City Council of Nairobi (now City County), the Commissioner of Lands, Attorney General and Registrar of Titles.

In his ruling, Justice Obaga ordered Kabogo and City Hall to deliver vacant possession of the land to Patel while issuing a permanent injunction to the registrar of titles from accepting, , acting upon or effecting any sale, lease, charge transfer or alienation and/or dealing in any manner with the land.

“A declaration is hereby given that Caroget investment limited unlawfully and illegally occupied and took possession of the suit property and these acts amount to trespass and that Aster is entitled to the sole possession thereof. An award of Sh100, 000,000 general damages to be paid by Caroget investments,” the declared ruled in a 25-page ruling.

City hall and Kabogo were also ordered to meet the cost of the suit estimated at Sh17 million for the plot that is situated along Mvuli Road in Westlands Nairobi, 4.8 kilometres from the city centre.

In his determination, the judge said that although Kabogo claimed to have applied for the allocation in 2007, documents availed in court shows that the alleged allotment was done in 2006.

City hall transferred the suit property to Caroget on 11th May 2007 who took possession after chasing away guards of Aster holdings.

“City Hall is the one which obtained allocation of the suit property which was registered in its name before it was transferred to Caroget. City Hall has since disowned the title and recommended its revocation. Though City Hall has been pretending to be innocent in the whole scheme, it has not come out clearly on the position it has taken in the matter. In the first suit, City Hall claims to own the land. In its evidence in court, it completely changed the story and indicate of the plot belongs to Aster holdings.”

“The first defendant (City Hall) is trying to feign ignorance of what was going on. The letter of 19th December 2006 is clear that City Hall and Caroget had hatched a fraudulent scheme to have the suit property taken by Caroget. The deed plan which Caroget presented was forged,” the judge ruled.

The businessman had told the court that Aster holdings bought the land from Nairobi Homes in 1997 and applied for extension of lease on 1st July 2001 and was granted the parcel of land I.R 86125/2 witnessed by then commissioner of lands Sammy Silas Komen Mwaita (now Baringo Central MP).

He said his firm enjoyed peaceful possession of the land LR 1870/V/2447 measuring 3.069 hacters (approximately 7.5 acres) until on the 28th May 2007 when unknown people invaded the property demolished structures and erected new fence.