Five Britons deny fraudulently selling Sh600 million prime land in Diani

Five British nationals and a Kenyan were on Wednesday charged with fraudulently selling three prime pieces of land worth Sh600 million in Diani, Kwale County.

Annelise Clark, John Clark, Christine Clark, Hellen Hartley, Richard Hartley and Peter Mutwiwa were charged with conspiracy to defraud James Archer, Joanna Trent and Robert Archer of the said lands.

It is alleged that the six accused subdivided the three properties into six plots and sold them to M/S Snapdragon Limited, Kamakawaida Properties Limited and Bariness Holdings Limited.

The three companies are also cited as among those charged alongside the five accused persons.

The five denied the charges before Chief Magistrate Alex Ithuku and were released on a bond of Sh1 million with an alternative cash bail of Sh300,000.

It is alleged that on diverse dates between 2017 and 2021, at the law firm of Muthama Advocates Mombasa, the accused jointly, with the intent to defraud the beneficiaries of trust properties, fraudulently sold the said three parcels of land.

They were also charged with procuring the subdivision of the said three parcels into six plots and falsely acquiring the titles of the said properties while pretending to be the lawful beneficiaries.

Anneslise Clark was separately charged with perjury for swearing a false affidavit at the Mombasa Court of Appeal on November 8, 2021, by claiming that the subdivided plots were transferred to M/S Snapdragon Limited and Kamakawaida Properties Limited for variable consideration on December 3, 2019.

The prosecution applied to bar the accused’s advocate, Muthama, from representing them over conflict of interest, having been adversely mentioned in the said fraudulent transaction.

State counsel Antony Ndiema said that Muthama is likely to be a state witness in the case and termed his office a crime scene.

"Muthama was adversely mentioned and might be a potential witness in the matter. His continued representation of the accused person will be a conflict of interest. We have instructions to object to Muthama representing the accused,” said Ndiema.

However, Muthama opposed the application, saying that neither he nor his firm is listed as a witness.

He said he did not know why the prosecution was uncomfortable with his appearance in court, while he had been instructed by the accused persons to present them and their interests.

Muthama argued that it would be highly prejudicial if the rights of the clients guaranteed under the Constitution to have and be represented by a counsel of their choice are infringed and the court will be abrogating that right without any grounds to support such a decision.

“I have not been requested by the investigating officer to record a statement, and none of my partners have been asked to record a statement in the matter. Save for the allegations that my office may be a crime scene, I have heard nothing that will move this court to uphold the objection,” he said.

The magistrate allowed Muthama to participate as counsel for the accused persons and ordered the investigations officer to file an affidavit indicating whether the lawyer will be cited as a state witness or an accused person.

“The issues raised by the state on a possible conflict of interest are weighty and factual. Without going into their merit, I want to direct that the investigating officer in this case files an affidavit indicating the possible participation of Mr Muthama, including if indeed he is a witness or if he may at some point be an accused person in this matter considering what appears in particulars of count two,” said Ithuku.

He also directed the affidavit to include a statement if any were taken or summons were issued to Muthama to record a statement.