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Ghostly luxury apartment, ownership of Yaya Centre dog Nicholas Biwott in death

NEWS
By Wainaina Wambu | Jan 18th 2022 | 8 min read
By Wainaina Wambu | January 18th 2022
NEWS

Who owns Yaya Centre? Alnoor Kassam claims that the complex was unfairly taken from Trade Bank depositors. [Courtesy]

Abandoned, desolate and sun-baked for decades, the two towers attached to Yaya Centre blot the otherwise impressive Kilimani skyline.

This ghastly sight of crumbling stairs and protruding and rusting metal rods has been a subject of fascination and conspiracy theories for decades.

Next to the abandoned building sits the similarity designed and top drawer Yaya Towers Hotel, a haunting reminder of how the incomplete towers should have looked like once done.

But why have the towers remained incomplete for over 20 years? Was it lack of funds, a pending court case or a business deal gone wrong? Did an aggrieved party in the construction pour tons of cement into the plumbing is often whispered?

In the finale of a series of interviews with Alnoor Kassam, the ex-billionaire who now lives like a monk in Nepal tells his version of the story of Yaya Centre.

The battle for the control of the multi-billion shopping complex was a fierce affair marked by betrayal, death threats, deportation and moneyed political operatives pushing their networks to the limit.

So, who owns Yaya Centre? The layman, and this has become folklore, would quickly link it to powerful minister Nicholas Biwott who died in 2017.

There is some truth to that.

However, Kassam – one of the few men who took Biwott head-on – albeit to disastrous consequences – is adamant that the complex was unfairly taken from Trade Bank depositors.

“I still think that Yaya Centre belongs to the people who lost their money... Biwott or whoever owns it now shouldn’t,” Kassim, a self confessed rogue banker told The Standard.

“If I had the wealth that I had before to retain lawyers, and the statute of limitations had not passed, and I was 20 years younger and know what I know now, I would fight for what is right and get back Yaya Centre to the Deposit Protection Fund (now known as the Kenya Deposit Insurance Deposit (KDIC).

Former Cabinet Minister Nicholas Biwott. [Courtesy]

Kassam is the man behind Trade Bank, one of the country’s most innovative and popular banks of the 80s and 90s. It was also one of the most infamous “political banks” where lenders were formed by the powerful to loan themselves colossal amounts of cash on an unsecured basis.

The Bank spectacularly collapsed and Kassam fled to Canada. He was unable to wrest Yaya Centre from Biwott with the courts handing it to Biwott. Before its collapse, Trade Bank had held Yaya Centre as collateral to Biwott’s loans.

When Trade Bank collapsed, its liquidator DPF took over the assets. Some such as Trade Bank Centre (now Integrity Centre housing Kenya’s anti-graft institution) were sold. However, Biwott was able to wrest Yaya Centre from DPF in a protracted four-year legal battle.

Requests to KDIC for access to more information on the sale of assets after the Trade Bank liquidation did not bring forth results.

A top investment banker from the era who spoke to this writer on condition of anonymity recalls that those days, certain banks were formed for the sole purpose of serving “certain interests”.

Yaya Centre was the product of a partnership between Biwott and Israeli tycoon Zeevi. It was named after the nickname of the latter’s daughter – Yaya.

The duo partnered through a company known as HZ which built the shopping complex. The duo fell out with Biwott taking over the Kenyan business assets when Zeevi was deported, fled or left the country.

“When Biwott and Zeevi fell out, Yaya ended up with Biwott under Trade Bank financing.”

What about Kassam’s claims that the property belongs to clients who lost money when Trade Bank went under?

“Maybe he’s right, but unravelling that mess will be very tough,” the top investment bank, now retired, observed.

But Kassam insists that it’s about fighting for “what’s is right” and that he should have returned to Kenya to accomplish this mission.

In 2012, he did come to Kenya to pursue this and even met with three lawyers. According to him, two of the lawyers said the matter could only be sorted “under the table” while the other said he (Kassam) be wasting his time as “Kenya hadn’t changed and the case would be stuck in the legal system for years”.

Alnoor Kassam. [Courtesy]

On the incomplete towers, Kassam notes that when Trade Bank took over Yaya, they were still unfinished and unoccupied. He says he completed some sections of the buildings and even brought a South African firm to manage it.

But problems with Biwott would continue as he had retained a unit as penthouse and apartment for no rent as part of the agreement between Trade Bank and Yaya Towers.

To understand the ownership trail, this writer started with a company ownership search for what is believed to be the holding company for Yaya Centre – Yaya Towers (management).

The firm was registered on March 7, 1989 and four directors are listed including Zeevi, David Bartnoviski, Shirin and Akber Esmail.

David Bartnoviski, an Israeli national, worked as a top executive in one of the Biwott firms while Shirin is said to be the mother to Akber Esmail.

“To Registrar of Companies, Yaya Towers Management gives notice in accordance with section 108 of the companies act that the registration office of the company incorporation is situated at L.R No 209/1846 Corner House, Kimathi,” read the registration details from the Company registrar.

Akber, the lawyer from Esmail and Esmail Advocates, was the one who submitted the registration details. It was registered with a nominal capital of Yaya Towers (management) at Sh100,000 divided into 5,000 shares of Sh20 each. When contacted for this story, Akber, now chairman of the Middle East Bank, referred this writer to another lawyer.

“Akber didn’t handle this transaction,” said one of his associates.  

In the Yaya Towers (management) Ltd file, Akber was identified as a director of over 50 companies with interests ranging from property, manufacturing, aviation, transport and logistics.

“All Akber did was to be lawyer of the powerful so you can't fault him for anything. He was a lawyer,” the retired investment banker told this writer.

“He held shares for many people, families, businessmen. That is what lawyers like him did in those days,” the banker noted.

A letter dated May 16, 2002, from the Registrar of Companies requests Yaya Towers (management) Ltd to file annual returns for a 12 year period, suggesting that the company appeared to have been dormant since its registration.

An aerial view of Yaya Centre, Nairobi. February 2021. [David Njaaga, Standard]

“It has been observed from the records of the above company which you facilitated in its incorporation on March 7, 1989 that no annual returns have been filed to date. By this letter, you are requested to advise your clients to submit all the outstanding annual returns for the years 1989 – 2001 as soon as possible as required under section 125 of Cap 486,” read the letter.

The firm had been established to be a property developer, manufacturing, financier and do acquisitions, among other trade-related activities.

But the top retired investment banker dismisses Kassam’s claims regarding the ownership of Yaya as “unfinished business” resulting from fall out among “bad people.”

“There was an unholy falling out of bad people and he (Kassam) lost out, that is the reality.”

“There are a lot of stories that will one day be told but they all revolve around the same double-dealing and buying companies. Even Naushad Merali (the late billionaire industrialist) is part of that.

“It was a game which had lots of … very much like Kenya’s politics today allies becoming enemies, buying and selling companies and people finding themselves on five sides of the same thing because of this or that interest.

“Alnoor, really, if one may use a metaphor, was the ham in the sandwich. He was one of the people who didn’t survive that very dynamic period,” the old banker said, adding that there’s nothing new to Kassam’s story because, “He got caught up, he shone too brightly and he overextended himself… I was there so I know.”

The old man points out that this was the era of the pre-export financing and forex fraud, an era that ushered others like Kamlesh Pattni and Ketan Somaia.

The ownership battle for Yaya Centre can be traced back to 1992 when rumours started that the mall had been sold for Sh600 million. Two lenders – Pan African Bank and Trade Bank – were reported to have gotten their share from the sale with the money being compensation from losses arising from non-performing loans (NPLs) made out to firms associated with Biwott.

The two banks were on the verge of collapse because of liquidity issues. Trade bank would collapse in less than two years. When Trade Bank collapsed and Kassam fled, Biwott went to court to wrest control of the Mall from the Deposit Protection Fund.

Yaya Centre. [File, Standard]

Biwott argued in court that the transaction to sell Yaya was illegal and null and void from the start and that he and other directors were pressurised to sell it.

J. Norbury, a witness, told the court that the transaction was hurriedly done due to the time limit set by CBK at the time when Kenya was under strict scrutiny of the IMF and the World Bank

Pressure came from the fact that Biwott’s L.Z group of companies and Biwott himself owed Trade Bank substantial amounts of money, monies that were overdrawn from the CBK

CBK had been pushed by IMF and other international lenders to ensure that all the money overdrawn by commercial banks was recovered.

J Norbury was financial advisor to L.Z Engineering construction firm, linked to Biwott, which had lodged a lawsuit claiming to own Yaya Centre against Trade Bank which was in liquidation.

The deal had been to transfer shares in Yaya Centre to Trade bank for Sh600 million which was roughly the debt owed.

 “There was complete agreement at all time that what was to be transferred were 100 percent shares in Yaya Centre at an agreed transfer sum of Sh600 million,” said the witness.

The other firms involved in the deal included Yaya Towers ltd and H.Z Company Ltd also linked to Biwott. Kobil also featured. The amount of each of the three companies’ indebtedness to Trade Bank was put at over Sh46 million.

According to Trade Bank, a resolution had been passed to appoint Ian Rayner and Gideon Ndambuki, then GM of the Bank, as new directors of Yaya Towers.

In an affidavit, Kassam also alleged that among other resolutions included the issuance of a legal charge on Yaya Towers in favour of the DPF board which was overseeing the Trade Bank liquidation.

However, after a four-year protracted legal battle,  the courts handed Yaya Centre to Biwott. Criticism would also dog CBK regarding its lending policy and flouting of banking laws, especially in regard to lending politicians. The court said that the transaction and the sale of Yaya Centre wasn’t voluntary and Trade Bank was in no position to buy Yaya’s equity owing to their liquidity problems.

“I think that CBK acted with impunity thinking that they were powerful enough to be able to pressurise (lawyer) Esmail into signing the transfer documents.

“Unfortunately, it did not work for them. Esmail refused to be a party to what he thought was an illegal transaction,” the judge concluded.

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