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The tricks fraudsters use to dispossess you of your land

REAL ESTATE
By Paul Ogemba | May 11th 2022 | 8 min read
By Paul Ogemba | May 11th 2022
REAL ESTATE
Justice Okong’o brought to the fore tricks used by fraudsters to pounce on land whose leases are about to expire in a judgment where he saved the Sh2 billion Caxton House from land grabbers. [Boniface Okendo, Standard]

When British engineer Paul Curzon left the country in 2016 to take care of his ailing wife, land grabbers pounced on his two parcels and evicted his workers. 

He discovered that the grabbers claimed he died in 2006 before faking his death certificate. They then prepared a sale agreement purporting that he had sold them the two parcels in Kileleshwa and Ngong Road before his death. 

Curzon sued Martin Muthama and Stephen Kirianki for grabbing his properties and putting them up for sale but the 'businessmen' maintained that the Briton sold them the property in 2005 and that the person (Curzon) who appeared in court to testify was a ghost. 

Justice Samson Okong’o came to Curzon’s rescue in getting back the Kileleshwa property valued at more than Sh200 million when he ordered the land grabbers to vacate the premises and pay him damages of Sh15 million for trespass. 

“Muthama and Kirianki claimed to have purchased the property in 2005 but did not even place the agreement for sale and the instrument of transfer through which they acquired the property,” ruled Okong’o. 

Curzon’s experience at the hands of the businessmen shows the emerging trend of tricks used by land grabbers to dispossess landowners of their properties. 

Paul Curzon in the witness dock at a Milimani High Court on July 26, 2018. Alleged land grabbers had sold his land after saying that he was dead. [File, Standard]

Chief Justice Martha Koome, during the launch of the Environment and Land Court’s Court Users Committee, noted that disputes relating to land are very emotive as land is highly valued. 

According to the CJ, there were 12,765 pending land cases in court as of December 2021 which shows the extent to which people are fighting to retain their properties. 

The disputes reveal an intricate syndicate and well-coordinated web of land grabbers’ paradise in which they use all manner of unorthodox means to defraud genuine landowners. 

From faking land documents, through collusion with officials at the Ministry of Lands, selling land to more than one person, trespassing, selling inexistent land, taking advantage of vulnerable people and faking leases, shows grabbers will go to any length to snatch land. 

“This is understandable, especially noting that of all the factors of production, land is the one factor that is easily accessible to most Kenyans. Most recently we have seen the negative effects of competition for land with all the communal conflicts that have occurred,” said Koome. 

With the increasing land disputes, the Judiciary has increased the number of judges at the Environment and Land Court from 31 to 51 and increased land courts from 26 to 37 across the country. 

Ungrateful guests taking advantage of the dead 

For the family of the late Josephat Wesamba, their grandfather’s sympathy for a relative is almost costing them 9.5 acres of their ancestral land.

This is after the relative turned out to be a land grabber. 

According to Wesamba’s son Charles Mukhwana, their grandfather Pascal Wesamba gifted his relative Lubare Omondi 2.4 acres and retained the remaining 14.5 acres to his children. 

All was well until September 2012 when Mukhwana’s father passed on.

While the four siblings were still coming to terms with the death of their father, Omondi’s son Joseph Wambutsi invaded a portion of their land and allegedly grabbed 9.5 acres. 

“These are people who our grandfather only gifted the portion of land out of his good heart. They have now turned against us and grabbed our portion where he has built his home and leased some part to a local church,” said Mukhwana. 

Wambutsi in his defence claimed that Mukhwana’s grandfather gifted them the entire ancestral land in Matungu, Kakamega County before his death although records at the lands ministry filed in court showed that the land’s title is registered in the names of Charles Mukhwana Wesamba. 

The dispute which is pending judgment at the Kakamega High Court shows a trend of land grabbers invoking the names of dead people who cannot resurrect to disinherit the dependants from their land. 

The same trick almost made Margaret Omollo, a widow, lose her one-acre land in Vihiga Town to Fredrick Maungu who claimed that he bought the land from Omollo’s husband, Samuel Were, before his death in 1996. 

Maungu told the court that he bought the land from Were in 1982 and produced a purported sale agreement which the court found was forged but the widow told the court that he was an intruder who took advantage of her husband’s death to grab her inheritance. 

Justice E. Asati concluded that there was no valid sale agreement between Maungu and the late Were, and that his claim to the land was an unlawful attempt to grab the widow’s land. 

 Expiring land leases 

Justice Okong’o brought to the fore tricks used by fraudsters to pounce on land whose leases are about to expire and secretly changing registrations in collusion with lands officials in a judgment where he saved the Sh2 billion Caxton House from land grabbers. 

The dispute was between Sayani Investments Ltd against Sadhani Ltd and Keibukwo Investment Ltd for the one-acre land along Kenyatta Avenue in Nairobi. 

President Uhuru Kenyatta and Chief Justice Martha Karambu Koome with Judges of the Environment and Land Court at State House on June 4, 2021. [PSCU, Standard]

Sayani claimed that in 2007 they applied for an extension of their lease for 50 years which was allowed but while they were waiting for the registration, their file got lost at the ministry of lands. 

Without their knowledge, the title had been secretly issued to Sadhani Ltd and Keibukwo Investment Ltd who then moved to take possession of Caxton House. 

Justice Okong’o ruled that it was an act of corruption for a survey to be carried out to extend the lease to Sayani Investments Ltd only for it to end up being used to grab the property. 

Trespass and encroachment 

With emerging trends of boundary disputes between landowners, one should be worried about their idle land because your neighbour could be the land grabber preying on your land. 

This was the shock that Royal Media Services chairman Samuel Macharia encountered when his neighbour encroached on his land in Ukunda, Kwale County, and grabbed a portion. 

Macharia accused Muses and Estate Sonrisa Limited of encroaching on his 4.5 acres arguing that the Polish investors who had an adjacent land measuring 2.2 acres grabbed his portion by illegally extending the boundary. 

He was saved by both the Environment Court and the Court of Appeal which affirmed that the portion belonging to Estate Sonrisa Limited was 2.2 acres and not 4.5 acres as the investor claimed. 

It is the same case that saw Justice Christine Ochieng order businessman Dominic Kinya compensate Wambui Wagacha and Mercy Njeri Sh20 million for encroaching and attempting to grab a portion of their land. 

The two women had complained that they bought two parcels of land in Mavoko within Machakos County which were neighbouring Kinya’s parcels. 

Because they delayed developing their portions, Kinya grabbed some parts by extending the boundary and developing it. 

Forgeries 

When Shashikant Patel bought 17 acres of land from Thomas Mumo in 2003, little did he know that the landowner would turn against him and forge his signatures to reclaim the land.

Patel’s case was that after buying the land located in Machakos town, he took over possession and started developing it while giving Mumo time to process the title of transfer. 

However, in 2011, Mumo rescinded the decision and claimed that he had only leased the land to the businessman for eight years and demanded that he vacates. 

Justice Christine Ochieng however found that Mumo had forged the lease agreement to grab a land he had lawfully sold to Patel. 

“I find that Patel had indeed been in possession of the land from 2003 and that Mumo is indeed in breach of the sale agreement. I further find that he forged the lease agreement to deny the lawful buyer,” ruled Ochieng. 

Secretly selling one's land 

Donald Mageka learnt the hard way when he lost his land in Kisii after his brother stole his title and secretly sold the land. 

Mageka sued Japheth Siocha arguing that he took his land without his consent after it was secretly sold to him but Justice Mugo Kamau dismissed his claim on account that Siocha was an innocent buyer who was not aware the title had been stolen. 

Mageka’s case was that in 2004, there was a robbery at his home in Nyansiongo, Kisii County. His title deed was allegedly stolen by his brother Joseph Mokaya who secretly sold the land to Siocha in 2006. 

Justice Kamau ruled that since Mageka had accused his brother and Siochi of fraud and had them charged in a criminal case before they were acquitted, there was no evidence that Siochi illegally acquired the land having legally bought it from Mokaya. 

George Kamau and Peter Mukuna also accused their brother Patrick Kagotho of grabbing and secretly selling their ancestral land to Erastus Njoroge without their knowledge. 

The two argued that after their father’s death, they allowed Kagotho to have the land registered in his name being the eldest but he relocated to Rift Valley with the mother's title and secretly sold the entire 2.5 acres to Njoroge. 

Lady Justice Lucy Gacheru saved the two brothers from losing their inheritance when she ruled that the property was a family land before the elder brother was registered as the owner to hold it in trust for his siblings. 

Double selling 

The family of the late Geoffrey Adams Ogwa almost lost six acres in Busia town when the seller changed his mind after his death and sold the land to a second buyer. 

Lady Justice Anne Omollo ruled in favour of Ogwa’s son Abraham Gina who had sued Geoffrey Namadoa for attempting to evict them from their family land after his father’s death in 2006. 

According to Gina, his father bought the land from James Natolio in 1991 after which the family moved in and built their home. He stated that in 2015, Natolio took advantage of his father’s death and resold the land to Namadoa who then served them with a notice to vacate. 

Namadoa in his defence told the court that he was an innocent buyer but Justice Omollo ruled that he could not be an innocent buyer when the land was already occupied by Ogwa’s family. 

“Occupation by the deceased on the disputed land and his family was open and continuous such that even the second buyer knew the land belonged to him. The certificate of the title he is holding does not meet the qualifications of an innocent buyer,” ruled Omollo. 

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