Investor and Mombasa woman tussle over rival claims to Sh5.2 million property

MOMBASA, KENYA: An investor wants the High Court in Mombasa to help him acquire a piece of land he says he bought in 2006 for over Sh5 million from an alleged fraudster who purported to have the power of attorney to sell the property.

Samuel Varghese who is based in Mombasa says he bought the property on Mombasa Island from David Mbai Kiarie, who is a brother of the property's original owner Joyce Wariara Kiarie Rumsey who lives in the United Kingdom.

Joyce has sued Varghese for placing a caveat on her property blocking her from selling it to pay a mortgage and raise money to treat her ailing father in the UK. She says she was baffled to discover a caveat had been placed on the land and she could not transact anything on it yet she had not sold it.

But Varghese insists he bought the property, lawfully, after a transaction approved by David Mbai Kiarie, acting as Joyce's agent.

Varghese told Lady Justice Ann Omollo that he paid over Sh5.2 million through his lawyer Vikram Kanji to finalise the transaction and transfer the title deed to his name.

“I wish the court to order a transfer of the land in my name since I had done due diligence and paid all the money to the parties. I had commercial interest on the land and if I had invested it would be worth over Sh78m-Sh100 million,” said Varghese.

In a cross-examination by his lawyer Michael Oloo on Friday, Varghese said that the lawyer he hired had done a land search and established that the land belonged to Joyce who resides in United Kingdom.

Varghese further said that his lawyer Kanji had told him that Joyce had given his brother Kiarie the power of attorney to sell the 1.095 acres of land.

Varghese told the courts that he had met with a land broker called John Chege Kamau in September 2006 who showed him the land and after liking it, he instructed Kanji to proceed with the purchase of the property.

“I met with a land broker Chege who runs Homestead Properties and he showed me the land and took him to my lawyer Kanji. Chege said that the owner (Joyce) was in London and that her brother had been given the power of attorney of the property,” said Varghese.

Varghese however said that he never met Joyce or his brother David because he had left all the transaction to his lawyers Kanji.

Varghese said that the sale agreement was duly executed on October 10 2006.

Testifying in court, Kanji confirmed that he had acted on behalf of Varghese to purchase the land and had paid the Sh5.2 million to Waweru and Omondi firm who he believes ought to have the monies.

Kanji told court that after his efforts of trying to locate and actualise the transfer of the title he advised Varghese to place a caveat on the said property to stop any dealing.

“We paid Sh5.2 million on October 10 2006 where I forwarded a deposit of Sh 520, 000 by cheque to the vendor advocates Omondi Waweru and the balance was paid within 90 days from date of agreement,” said Kanji.

He said that the advocates (Omondi and Waweru) did not tell him that there was any dispute on the land.

“Due diligence was done during the land search. But we were unable to register the land to Varghese because the file in the land registry had gone missing and upon trying several times I advised my client to stop any dealing on the property through a caveat on October 7 2008,” said Kanji.

Kanji said that upon payment they were given a provisional title.

@Kanji said that according to the due diligence and the documents presented to Varghese and all the payments done, the land transfer is entitled to Varghese,” said Kanji.

However Joyce who testified in court earlier denied ever giving her brother the power of the Attorney to act on her behalf.

Joyce said the date when the power of attorney was being signed on July 21 2006 she was in UK and was in Kenya on April 10 2007.

“Mr. Gachathe has shown me the power of the attorney which to the best of my knowledge can only be a work of a fraudster,” she continued.

Joyce said that it was fishy that the transfer lease was being signed a year later after the sale agreement was signed.

“The property was at the time valued at Sh10 million but they agreed to sell the same for a paltry Sh5 million,” said Joyce.

Joyce said that she became aware of an illegal sale after she attempted to secure a loan with the said suit property after the bank requested her to conduct a due diligence to suffice proper collateral.

“To my surprise my advocates told me that my property deed file at the lands office could not be traced,” said Joyce.

She said that it was after she wrote to the Commissioner of Lands and the Lands Registrar that on October 22 2007 the file was traced and was told it was safe on November 2007.

Joyce said that instead of developing the suit land she had decided to sell it to repay her mortgage back in UK.

Related Topics

Mombasa High Court