Patrick Kang’ethe Njuguna may be old, blind as bat and half paralysed, but his brain is razor-sharp. With just one land title deed, and working in cahoots with close relatives and crooked operatives at the Lands Registry, he ‘raided’ three banks and wheeled off Sh466 million — without firing a single gunshot.
On April 8, 2010, Njuguna, who owns the iconic Princes Hotel in Nairobi, and his sons Edward Njuguna and George James Kireru Kangethe, all trading as “Patrick Kangethe & Sons”, went to the Co-operative Bank of Kenya and borrowed about Sh166 million. The bank withheld the original title to land parcel No. Dagoretti/Riruta/2289 (plot 2289) measuring approximately 0.2 hectares registered under Patrick Njuguna’s name as security.
But in the next four years, Njuguna and his accomplices would present two other ‘original’ titles for the same piece of land and secure Sh100 million and Sh200 million from Commercial Bank of Africa (CBA) and Equity Bank respectively. Both CBA and Equity Bank, which still retain the titles used as security, say appropriate searches did not reveal any previous charge on the titles.
None of the three loans were repaid. And on May 20, 2016 the Co-operative Bank instructed Leaky Auctioneers to advertise plot 2289 for sale to recover Sh195 million. Patrick, Edward and George tried to block the sale by seeking an injunction in Mombasa (as per HCC No. 50 of 2014), but they were unsuccessful.
It was when the sale was re-advertised that Equity Bank and CBA realised that the land being sold was what they held as security against loans running into hundreds of millions of shillings. So they too rushed to court. They both asserted that the intention by Co-operative Bank to sell the property was illegal, null and void, since they never gave their consent for creation of any charge on the property besides theirs; and that the charge held by Co-operative Bank was on a fake and parallel title. They basically sought an order for injunction to restrain Co-operative Bank from selling plot 2289 pending the hearing of the suits. Both suits were consolidated and applications for temporary injunction under Order 40 of the Civil Procedure Rules were heard together.
But Co-operative defended their case and was given the go-ahead to sell the land, since it was the first bank to hold the title to the land. Magistrate Okongo J found no reason to stop Co-operative Bank from exercising its statutory power of sale and set it free to proceed with the auction. The court expressed the view that if any charges were created on fraudulent fake titles, then those were the charges created by CBA and Equity Bank, since the charge in favour of Co-operative Bank was first in time.
“Whereas I am in agreement with the contention by Commercial Bank of Africa and Equity Bank that there is a high likelihood that the persons mentioned above fraudulently with collusion of the Land Registrar created parallel title deeds for the suit property which they used to defraud CBA and Equity Bank of hundreds of millions of shillings, there is no evidence that the transaction between Co-operative Bank and Patrick Njuguna was affected by the alleged fraud or that Co-operative Bank was involved,” the judge ruled.
Equity Bank and CBA appealed, and the matter fell before a three-judge bench of P N Waki, M Warsame and PO Kiage, who on June 28, 2018, stopped the sale of the land by Co-operative Bank.
“The matter before us raises an interesting, but also perplexing scenario. It involves three of the country’s top banks - Equity Bank Ltd (Equity), Commercial Bank of Africa Ltd (CBA) and Cooperative Bank of Kenya Ltd (Co-op Bank) - who appear to have been caught up in an intricate web of a fraudulent syndicate hatched by their mutual customers. In the process, the banks are staring at the possibility of losing hundreds of millions of shillings of customer funds. The syndicate, we are told, has also hit other banks in the country, and it is perplexing that none of the perpetrators has been subjected to the criminal process. Perhaps it is a measure of how high the country has soared in the corruption index.”
The three judges added: “There is, in our view, considerable interest by a large bank customer base, if not general public interest, and therefore the need for circumspection. We are inclined, in the interests of justice to find that the success of the intended appeal would be rendered ‘worthless, futile, invalid or trifling’ if we do not grant the order sought.”