Fresh details have emerged again pointing to the possibility of rampant fraud in the acquisition and transfer of the controversial Sh8 billion Karen land.
Court documents in the possession of The Standard on Sunday point to an intricate web of mystery, including an alleged sale of the land by a colonial settler, five years after his well-documented death.
What more? The lawyer alleged to have witnessed the transfer of this contentious land on the said date had been certified dead 18 years earlier.
According to the Kenya Gazette notice No. 4131 published on September 6, 1960, Fredrick Hurligh Hopley, the lawyer who oversaw the transaction, died on July 2, 1960 in Nairobi, almost two decades before drafting the transfer of the property.
These transfer documents were attached on an affidavit filed by former NSSF managing trustee Jos Konzolo, who through his Telesource.com Limited, claims to have acquired the land from Mugo Kamau on October 21, 2005.
“That the property known as L.R No 3586/2/3 (currently known as LR. No. 3586/3) was transferred to John Mugo on August 24, 1978 vide a certificate of Title IR31187 and the title was issued on March 2, 1978,” Konzolo’s affidavit through Gikera & Vadgama Advocates dated December 18, 2014 states.
However, Muchanga Limited director Horatius Da Gama Rose has raised questions on the authenticity of the new documents which he says are clearly fraudulent. Muchanga Limited also claims ownership of the said piece of land.
“The alleged transfer of the suit property from Arnold Bradley to John Mugo Kamau is clearly fraudulent as it is purported to have been executed on August 23, 1978 which is after Arnold Bradley died on October 22, 1973 and Grant of Probate was issued by the Court on 24th July 1974,” Da Gama Rose, through lawyer Cecil Miller, argues in court documents.
The businessman argues that the said transfer to Mugo should be declared fraudulent, illegal and void since it was purportedly drawn by Solicitor Hopley who had died 18 years before the transaction. Muchanga’s new affidavit was filed on Thursday last week.
Again, Da Gama Rose says he had charged the land with a local bank from 1983 to 1989 making it impossible for Mugo to have possessed ownership documents then. The property was charged on August 30, 1983 and a certificate of discharge issued on March 7, 1989 to enable the release of the title deed.
Da Gama Rose moved to court in September last year and obtained orders preventing the subdivision and transfer of the 134.4 acres.
The businessman says that he bought the land from Barclays who were the trustee of the late Bradley, hence sought to enjoin Barclays as they were the executors of the will.
The case has attracted media and public attention after reports emerged that powerful people in government and over 40 MPs were beneficiaries of the alleged grab.
Da Gama Rose has sued Telesource.com, Jina Enterprises, Habenga Holdings, Director of Survey, Ministry of Lands and Housing, director of physical planning, registrar of titles and chief lands registrar.
Mugo Kamau, from whom Telesource.com allegedly acquired the land, was also enjoined in the suit after senior deputy lands registrar Geoffrey Birundu Swanya swore an affidavit saying records in the ministry indicate that land is owned by Telesocurce.com, having bought it from Mugo in 1983.
Although Barclays Bank of Kenya said it was unable to retrieve original documents relating to the sale of the land, it acknowledged it handled the property over 30 years ago. Barclays says it has retrieved some correspondence which indicates that the bank handled some transactions on the land between Barclay Trust Investment Services and Da Gama Rose (Investment) Limited.
The bank says that after perusing their documents, they found that the late Bradley who died in 1973 was their client and indeed appointed them as the executor and trustee of his will.
“After being served with suit papers, we noted references to the fact that the bank acted as or was appointed as a trustee by Mr Arnold Bradley. That during the period the Bank was offering the Trustee services, our systems had not been automated and so documentation in respect of the trust business was manually recorded and stored,” Barclays says in an affidavit signed by Head of Legal Waweru Mathenge.
The bank says the process of transferring the property L.R. No 3586/3 and payment of legal fee was completed as at January 31, 1983 and the file closed.
“The property appears against an entry recorded on 21st September 1983 in the Securities Journal and the name of the customer is indicated as Da Gama Rose (Investments) Limited,” continues the affidavit.
The bank says the process of transferring the property L.R. No 3586/3 and payment of legal fee was completed by January 31, 1983 and the file closed.
The intricacies of the Karen land saga point to the decades-long rot that has plagued and continues to plague the country’s land registry. Only recently has the state put grabbers on notice over illegally acquired parcels of land. However, little in terms of prosecution has been done.