The fight over Sh8b Karen land that ended up as no man's

Police office guarding disputed Karen land when National Assembly land committee chairman visited there on 27/10/14. [FILE/Standard] For a decade, a company owned by former Vice President Moody Awori, his wife, and businessman Horatius da Gama Rose battled several persons and companies that claimed a prime land worth Sh8 billion. Da Gama Rose is the son of Kenya's first President Mzee Jomo Kenyatta's lawyer and associate, Francis Da Gama Rose. Awori testified in court that he incorporated the company, Muchanga Investment, on April 18, 1978, but retired as a director when he was appointed Vice President in 2003. Muchanga sued Telesource.com, Habenga Holdings Limited, Jina Enterprises, John Mugo Kamau, and former Nairobi Provincial Commissioner Joseph Kange'the's widow Carmelina Ngami. At the same time, Telesource.com and Joseph Milimu Konzolo countersued Muchanga over the property, 135 acres of land, originally owned by Arnold Bradley, a white settler. Muchanga claimed it bought the land from Barclays, allegedly the executor of Bradley's estate, for Sh1.25 million. Da Gama Rose, Muchanga's executive director, claimed negotiations with the bank to purchase the suit property began in 1982, and the property was registered in the firm's name in 1983. On the other hand, Telesource.com, Habenga, Jina, Mugo, and Ngami's administrator, Joseph Kangethe, also claimed ownership. Kang'ethe claimed that the property belonged to John Mburu. Mburu was former Nairobi Provincial Commissioner. He died in 1973. Before Ngami died, she alleged that Kenyatta's lawyer, Da Gama Rose, failed to list the property as one of Mburu's wealth when he died. However, in an interesting twist to the saga, they all went home with nothing, with the court ordering the property to revert to Bradley's estate. Justice Oscar Angote ordered public trustee to hunt for Bradley's surviving heirs and bequeath them the land. Justice Angote declared that the title obtained by Telesource.com and Mburu were acquired through fraud. He also ruled that the titles held by Muchanga, Habenga, Jina Enterprises or any other persons acting under them are null and void. Justice Angote ordered the registrar of titles to revoke all the titles held by the warring parties and barred them from selling, fencing, subdividing, dealing or interfering with the vast land. If the public trustee does not find any Bradley descendants, then the property must revert to the government as no one owns it. "The Public Trustee shall, within 30 days of the delivery of this judgment, and pursuant to the finding of this court, file an application before the High Court at Nairobi for appointment as administrator of the Estate of Arnold Bradley, over his residual estate, being Land Reference Number 3586/3, for the purpose of identifying the beneficiaries of the estate, if any, and distribution of Land Reference Number 3586/3 in accordance with the Law of Succession Act," ruled Justice Angote. In the case, Barclays Bank told the court that it never dealt with Telesource or Mugo. Instead, the lender claimed it oversaw the transfer of the 134-acre land from Bradley to Da Gama Rose. Barclays director of legal services Waweru Mathenge, in his testimony, said the lender had also held the title of the land as a charge of a loan taken by Mr Rose between 1983 and 1989 when it released a certificate of discharge after he completed servicing it. He said the property was charged on August 30, 1983, and a certificate of discharge was issued on March 7, 1989, to enable the release of the title deed. "The interested party has confirmed that the process of transferring the suit property was completed in 1983. This is the same year that the plaintiff (Muchanga Investment) acquired the title," Mr Mathenge swore. Barclays held that it was the executor of Mr Bradley's will and that it was legally transferred to Mr Rose. Telesource.com had told the court that it acquired the land from Mugo who had in turn purchased it from Bradley on August 24, 1978. Bradley died on October 22, 1973. Mr Mathenge told the court that the transfer between Bradley and Mugo was fraudulent and as such the company owned by former NSSF Managing Trustee Josphat Milimu Konzolo, could not place a claim after Mugo. "The alleged transfer of the suit property from Arnold Bradley to John Mugo Kamau, which is exhibited in the affidavit of the third respondent is clearly fraudulent as it purported to have been executed on August 23, 1978 which is after Bradley died on October 22, 1973 and a grant for probate issued on July 24 1974," the legal officer testified. "Barclays transferred the property to Da Gama Rose Investments as executor of Mr Bradley's estate. By January 31, 1983 the executorship had been finalised. There are no records showing that Barclays dealt with the land in regards to Habenga Holdings, Catherine Njeri Ng'ang'a or John Mugo," he added. Njeri had asked the court to allow her to come in as a party on behalf of Mburu's widow. The widow, Ngami, said that she had lodged complaints on mismanagement of Mburu's estate by the public trustees to the anti-graft body adding that the same body had done investigations on how Muchanga Investments had come to possess the prime property. In her sworn affidavit, Njeri accused Muchanga of fraudulently acquiring the land. But the bank disowned the testimony saying that it was not aware of her. Njeri was subsequently knocked out of the case and in her place Mathenge came in. Justice Angote found the mother title showing that Mburu was registered as the owner of the suit property on March 7, 1978. He however concluded that the document was fraudulently authored. "This entry is fraudulent because it is missing the critical entry of the issuance of the Probate of Will to Barclays Bank on March 2, 1978. Further, there is no evidence to show that indeed the executor of the Will of the late Arnold signed the transfer in favour of John Mburu before the purported transfer to John Mburu on March 7, 1978," said Justice Angote. At the same time, the judge said there was no evidence to show that Mburu bought the property for Sh1.25 million. He also held that Mathenge could not represent the estate as there was no evidence to show that the court had granted him the powers to manage Mburu's wealth. " Further, that while Joseph Kang'ethe Wanyoike has been appointed as a personal representative of the Estate of Carmelina Mburu, he has not been appointed as a personal representative of the estate of John Mburu. That being so, the ninth defendant does not have the locus standi to represent the Estate of John Mburu for lack of a full grant in that respect," the judge ruled. The judge noted that the dispute is a full-blown drama in the real estate chaos that has bedeviled the country since 1895, when it was declared a British protectorate. When Bradley died, he had a Will dated August 15, 1969. In his Will, he inted his wide Jeanette Sarah Bradley to be sole executor and trustee of his Kenyan will. Bradley directed that if Jeanette died before him or failed to take out the Will, he appointed Barclays Kenya as the executor and trustee. The court observed that it was unclear whether Jeanette died or simply had no interest in the wealth or Will as Barclays sought to be granted authority to run the estate in 1974. In his Will, Bradley bequeathed four acres of the prime land to his daughter, Arnette Thereson Benson, together with all the buildings built on it. Barclays then transferred the same on March 2, 1978. In addition, Bradley also directed that the trustee dispose of the rest of his Kenyan wealth and the cash be held in trust for the beneficiaries of his estate. "Concerning the suit property, which measures 54.39 hectares, the same should be sold and the profits held in trust of Edith Dorothy Brounger," the Will read in part. However, Barclays claimed that Brounger died on January 29, 1974, and a year later, on August 26, 1975, Thoman Owen Crundwell wrote to it indicating that he had no interest in Bradley's wealth. As a consequence, it argued, after Crundwell rejected the wealth, the same was to be distributed as if Bradley had no Will. It stated that the same was done and that a trust account was established for the benefit of Annette Therese Benson and Imogen Lindsay Poppleton, Bradley's children. Nevertheless, Justice Angote said there was no evidence to show that the property was sold to anyone, nor was there a purchaser. He observed that Barclays' company secretary only stated that the process of transferring the property and paying legal fees was completed as of January 31, 1983. The judge said Muchanga would have called witnesses from the bank to ascertain that the firm bought the property. "The issue of whether the plaintiff bought the suit property was contested by the defendants. This notwithstanding, and despite producing correspondences by the advocates and the bank running from 1977 in respect to the sale of the suit property, the plaintiff did not adduce the sale agreement to show the terms under which it bought the suit property, if at all," he said. The judge also noted that Muchanga also provided letters from Kaplan & Stratton Advocates, who acted for Barclays Bank and the firm of Francis Da Gama Rose & Co. Advocates, who acted for J.G. Mburu. In the letter, he said, there was one indicating that some Sh500,000 were sent and another one asking for consent of change of user. The court concluded that J.G. Mburu, who could also have been John Godhard Ichahuria Mburu, who died in 1981, paid the money. Kenyatta's lawyer then sent the remainder, Sh625,000 on August 15, 1978 but the same did not mention who the client was. Angote said that the sale agreement dated December 16, 1977 was done way before Muchanga was incorporated. However, he said, there was no evidence to show that the money was wired to Bradley's trust. " That explains why the plaintiff did not produce the sale agreement dated December 16, 1977 in evidence. Indeed, PW1, the plaintiff's director as at the time of incorporation, stated that although he saw the sale agreement, he does not remember signing it. It was his evidence that he could not remember the amount of money the plaintiff paid for the land, and that the plaintiff purchased the land in 1983, having stated the negotiations in 1982," said Justice Angote. Unfortunately, he noted, the Estate of J.G. Mburu, who was their client in question, cannot enforce the 1977 sale agreement because they neither have the agreement, nor evidence to show that the purchase price that was paid. On Mugo, Angote said, it was impossible for him to have bought the property as he had died five years before Bradley. On that basis, the judge ruled that it was impossible for Telesource.com to have bought the property from him. He observed that Mugo died in 1973 while Telesource alleged that he died on April 27, 2002. He annulled the subsequent subdivision done by Telesource and sale of the same to Wananchi Suppliers.. The Da Gama Rose family has interests in information technology, tourism, floriculture, financial services, garment manufacturing, printing and packaging, and real estate. Apart from the Kenyatta family, the family had links with Awori and Nicholas Biwott. Dimitri Da Gama Rose, son of Horatius and managing director of the family company, has been the face of their case in court.

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