KCAA: Weston colluded with firms to grab land
By Kamau Muthoni
| May 28th 2020
The Kenya Civil Aviation Authority (KCAA) has now claimed Deputy President William Ruto’s hotel, Weston Ltd, colluded with two firms to grab its land in Nairobi’s Lang’ata area.
In its court papers, however, Weston avers it legally bought the land from Priority Ltd and Monene Investment Ltd.
In new court filings, KCAA claims that inconsistencies in the documents produced by Weston, failure to produce any valid sale agreement and transfer instruments, and allegedly ignoring the Ndung’u report’s red flag on grabbed public properties indicated it played a part in grabbing the land.
While detailing gaps in Weston’s papers, KCAA argues that although Weston claims to be an innocent purchaser, there is no consent from the Commissioner of Lands approving the alleged sale, and no stamp duty was paid to seal the purchase process.
“Other questionable circumstances show that the second respondent (Weston) was actually a party to fraud perpetrated by the third and fourth respondent (Priority and Monene) .... This court cannot defer to individual claims by land grabbers where it is proved that the title was issued to grab a public land, in this case, public land entrusted to Directorate of Civil Aviation (DCA) for the public to ensure safety in air navigation and incidental purposes,” the aviation authority argues in its court papers filed in the Lands Court in Nairobi.
KCAA says two development plans submitted by Weston contradict each other.
It claims that although the two plans were issued on the same day, October 17, 1997, they are for different plots.
It further claims the ownership record is deliberately scrambled to conceal the fraud.
According to KCAA, Priority was still applying for permit approvals in April 2008, a year after the same land was registered in favour of Weston.
The contested property, LR No 209/14372, was registered under Weston on June 13, 2007.
KCAA lawyers Otiende Amolo and Stephen Ligunya argue that Priority could not have continued to deal with the same property after its legal interest in the land ceased.
“The second respondent was working with the third and fourth respondents in a scheme to construct on grabbed public land, perpetuating a fraud,” they argue, adding that it never bothered to carry out a proper search to ascertain that the title to the land was legal.
Weston, in its reply to the case, had attached a payment receipt as proof that it had paid survey fees for the contested piece of land.
However, the civil aviation agency argues that the receipt indicates that the paid amount was for an unsurveyed plot, and is a different property. According to the authority, its land had been previously surveyed and had a reference number.
KCAA questions how Priority and Monene managed to get a survey document (a deed plan) for the contested land more than a year before they paid for the survey, a pointer to fraud.
According to the aviation authority, receipts in Weston’s replying affidavit indicate that it paid for the survey on April 30, 2002, while a deed plan number 234961 in favour of Priority and Monene is dated April 12, 2001.
In a fresh twist to the case, KCAA says Priority and Monene illegally got an allotment for 0.7 hectares of the land, but in their final survey document, the piece mysteriously increased to 0.7733Ha.
“It is, therefore, clear that the third and fourth respondents who had paid for an unsurveyed plot on April 30, 2002, took records for the DCA land, including pre-existent deed plan for LR No 209/14372 and through gross and shameful collusion and corrupt schemes juxtaposed themselves as the allottees of LR No 209/14372, and illegally got themselves registered as first registered owners,” the court papers filed on May 7 this year continue to read.
In its case before Environment and Lands Court Judge Bernard Eboso, KCAA argues there is no proof that the land was either auctioned or how the three, being private citizens, got hold of public property.
Court records read that since Priority and Monene have not produced a copy of the application letter for allotment that they wrote to the Commissioner of Lands, the transaction was not registered in the Kenya Gazette.
“This petition challenges the fraudulent and illegal manner in which the transfer of KCAA land was done to the second respondent. The second respondent must go the extra mile and lead evidence showing the legality of how the title was acquired, showing the process was legal, formal, and free from encumbrances. However, this second respondent did not bring such evidence,” KCAA claims.
Meanwhile, KCAA argues that KCB can pursue Weston to recover a Sh1 billion loan issued to the firm. Weston secured several loans from the lender using the land now being claimed by KCAA as security.
The hotel secured a Sh350 million loan on October 9, 2014 using the contested land. The bank also loaned the hotel $1.5 million (Sh161 million at current exchange rates).
On July 8, 2015, Weston again went for another Sh700 million and used the same land as security.
“The charge in favour of the interested party (KCB) cannot be upheld as defence as the petitioner’s (KCAA) action because the second respondent (Weston) had no title to charge in the first place. The chargee will not be left without a remedy because it will be entitled to sue chargor, the second respondent for appropriate relief,” KCAA argues.
Weston maintains it was an innocent buyer of value. It claims it bought the land at Sh10 million after carrying out due diligence to ensure there was a valid title document.
At the same time, the National Lands Commission (NLC) has yet to file its reply to the case despite being at the centre of the scandal.
NLC had declared that the land where Weston sits belongs to the public, but directed that the hotel pay KCAA for its market value to legalise the ownership.
“The National Lands Commission filed no response to the petition. Our pleadings and averments are therefore unconverted by the commission,” KCAA claims. It further claims NLC deliberately waited for four years to settle the case to avoid revoking the title.
KCAA argues that the commission had no powers to order for compensation or force a person who has grabbed public land to compensate the government or its agencies.
It also claims there is no evidence that the commission had quorum as only one commissioner signed the controversial verdict.
“The petitioner has satisfactorily proved that the determination was skewed and unlawful having been made by one individual instead of three commissioners as mandatorily required,” the authority further claims in its court papers.
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