How fraudsters connive with top State officers to evict land owners

A cabal of land hungry, well-connected and informed individuals continues to hold dozens of families and individuals at ransom through well-orchestrated schemes to dispossess them off of their property.

By colluding with employees at the Ministry of Lands, the Directorate of Criminal Intelligence, the Office of the Director of Public Prosecutions and the police, this group forcefully takes over private land through a mixture of forgeries, coercion and if all fails threats of death and death itself.

The courts have in the past demonstrated the impunity with which these individuals -- top politicians, known businessmen and women and regime wheeler dealers -- close ranks to fleece or forcefully take over land from helpless individuals and families.

Investigations show that in spite of clean-up efforts by successive regimes, Ardhi House -- the custodian of all land private and public -- remains a cesspool of rot, where cronyism, thuggery and the sole determination of self-preservation and aggrandizement trump common sense and logic ten out of ten times.

Eviction notices

Within the walls of Ardhi House, entire histories of land ownership continue to either disappear or are irrevocably altered to the whims of the highest bidder. As a result, families have woken up to see eviction notices plastered on the walls of houses built by their grandfathers.

The unlucky ones have woken up in the middle of the night to sounds of bulldozers tearing down their abode in the full view of law enforcement, which most of the time, is on site to protect the savvy land grabbers.

Our investigations, through talking to those affected, have established that this select boys’ club preys on the elderly, the sick, perceived foreigners and on land whose leases are up for renewal.

Surprisingly, even when the valid land owners proceed to court, these con men have the knack of entangling up these pieces of land in expensive, protracted legal battles, often with the valid owners giving up and letting the grabbers take over entire estates.

This was more or less the case for three brothers who lived in blissful ignorance for 30 years until they were jolted into reality when a company emerged to claim their 100 acres of land in Machakos County.

Documents seen by Sunday Standard show Mrs Aziz Bibi and her son Mohamed Asif bought out the original shareholding of West End Butchery Ltd that carried out its business in Nairobi’s Westlands area in 1962 and made it a family business.

The company automatically inherited the 100 acres of land bought from one James Alexander Sunds in November 1972. The Registrar of Titles issued the relevant ownership documents for the property in December 1976 under their company - West End Butchery Ltd that was registered in 1957

In 1969, Mrs Bibi died but the original title was kept in safe custody by West End’s banker.

Her son Asif was joined by his two brothers -- Mohamed Rakha and Mohamed Rauf -- who had acquired shares in the company and together they took possession of the land. They drilled a borehole and started farming until 2001 when they abandoned the project due to unprofitability.

A watchman was hired to look after the property until February 2007 when persons claiming to be the rightful owners landed with a heap of documents to reclaim the land.

Copies of the documents left with the watchman showed West End shareholding had changed from the family. It purported that Asif had transferred his 1,085 shares to John Musa and Rakha had done the same to his 9,455 shares.

Their dead mother had transferred her 3,875 shares to Solomon Mwau.

The transfer share forms had been executed in October 2001 and an annual return form dated October 31, 2000 presented to the Registrar of Companies.

The forms were signed by one Lucy Nagaki Mburu purporting to be the company secretary and Musa along with Mwau signed as officers of the company.

Missing files

The three brothers were shocked since Lucy, Musa and Mwau were not known to them and no authority had been given to anybody to transact business on behalf of the company.

Acting as the company directors, Musa and Mwau signed an agreement with Arthi Highway Developers Ltd on November 17, 2005 for the sale of the disputed property for the sum of Sh35 million.

All documents and clearances necessary to effect the transfer were obtained but on presentation to the Lands office for registration on March 1, 2006, it transpired that the file containing the original documents was missing.

The two were asked to provide a Deed of Indemnity to facilitate registration and the Chief Land Registrar approved it on April 26, 2006. The transfer was registered on December 8, 2006.

Arthi took possession of the property immediately and subdivided it to 10 portions for sale. Three of the subdivisions were sold to Kenya Medical Association Cooperative Society Ltd, which tried to sell to the Nairobi City Council for use as a cemetery and Gachoni Enterprises Ltd.

The sales were taking place even after West End had filed a suit against Arthi, Musa, Mwau, the Registrar General and the Commissioner of Lands over the alleged fraud and illegality in the transfer of shares and land.

The three brothers’ company had put a caveat on the property and even obtained a temporary injunction and an order of maintenance of the status quo from the court.

In its response to the case in court, Arthi dismissed having acquired the property using fraudulent means, adding that it carried out due diligence by obtaining an official search from the company registry on July 27, 2004 that showed Musa and Mwau were West End directors.

On its part, KMAH argued that it followed the legal procedure in buying the property and paid Sh117,570,000 before getting the title deeds. It only became aware of the dispute when constructing a perimeter fence before constructing 154 units for its members.

Gachoni, which said it had paid Sh5.5 million after signing a sale agreement in February 2010, sued Arthi to refund the money after it became clear that there were caveats on the suit property.

In the case that was filed by the three brothers’ company, the High Court found that there was fraud in the transfer of shares from the original owners to Musa and Mwau. The court also found that there was collusion with the Registrar of Companies because annual returns filed by the West End were missing.

The court found that it was the fraudulent transfer of shares that led to the transfer of the 100 acres of land. It also found that the Commissioner of Lands was privy to the forged entries during registration and issuance of title because he failed to explain how two land title certificates on the same land could exist and which one was genuine.

The court issued orders that the transfer of shares was fraudulent and directed the registrar of companies to expunge from its registry entries made regarding Musa and Mwau. It also ordered the police to commence investigations on the fraud committed by Mwau and Musa, cancel the land title given to the two and to pay West End the damages and costs incurred.

Aggrieved by the decision, Arthi moved to the Court of Appeal on 34 grounds, saying the case was filed by West End without any resolution or authority of the board of directors.

Appellate judges Philip Waki, Roselyne Nambuye and GBM Kariuki dismissed the appeal in 2015, saying fraud was committed at the registry of companies as well as the lands office.

The judges pointed out that the title produced in court by Arthi was irredeemably fake and it had no title to pass to subsequent purchases.

[email protected]