Former Tetu MP Ndungu Gethenji has finally been charged with fraud for forging minutes of a shareholders meeting of Kihingo Village (Waridi Gardens) Management One Ltd.
Ndungu appeared before magistrate Martha Mutuku on Thursday morning and was released on a bond of 100,000, a surety of the same amount or a cash bail of Sh20,000.
Ndungu and the lawyers were present at the Kilimani court but the magistrate took the plea virtually from her office.
The pre-trial hearing has been set for January 18, 2021.
The offence is said to have been committed on November 21, 2018 when Ndungu’s phone was used to upload incorrect company information to the Registry of Companies through his E-Citizen account.
Mutuku directed the prosecution to supply the accused with the charge sheet copies of witness statements.
The magistrate then recused herself as she is also involved in another case where Ndungu is charged with assaulting Kishore Varsani and Prof George Wajackoyah within Kihingo estate. Wajackoyah is a witness in that case but holds a watching brief in the fraud case on behalf of the Kihingo residents. Mutuku considered that to be a potential conflict of interest.
Ndungu’s elder brother Fredrick Gitahi Gethenji, company secretary Charles Ngugi Njenga, businessman Julius Chacha, company secretary Wairimu Waiyaki and sergeant William Amayo have been listed as witnesses in the case.
Four weeks ago the case was deferred because Ndungu said that he had been in contact with someone who was Covid-positive. Two weeks he declined to attend court saying he was mourning his mother-in-law.
On Monday the magistrate adjourned the case to allow the two brothers to settle out of court. However, forgery is a criminal matter and not a civil matter that can be settled through arbitration.
On Monday Ndungu’s file mysteriously went missing but was located after lunch.
Gethenji and his family were the original developers of Kihingo Village, but Ndungu fell out with his brothers Gitahi and Bob over control of the Sh20 billion estate.
He claimed to control the estate through ’60B’ shares held by a company he created in 2010.
However, on November 2, 2019, Justice David Majanja ruled that there were no ‘B’ shares and endorsed a residents’ meeting in April 2019 that removed Ndungu Gethenji as chairman of the management company.
Kihingo Village in Kitisuru consists of 55 houses, with owners each having one share in the management company, a club house and social amenities.
The alleged forgery concerned attempts to make businessman Chacha Mabanga a director of Kihingo Village (Waridi Gardens) Management One that purported to hold 60 B shares in Kihingo Village(Waridi Gardens) Management that controls the estate.
If Chacha had become a director of KVWGM1, Ndungu could possibly have sidelined his brother Gitahi who was the other director of the company in which they each hold one share.
On August 6, 2019, Gitahi complained to the Registrar of Companies that he was not present at an alleged board meeting of KVWGM1 on November 21, 2018, that appointed Chacha as a director nor was he notified about the meeting.
The minutes submitted to the Registrar of Companies stated that Gitahi was present.
The notice that Chacha had been appointed as a director came through E-Citizen using Ndungu’s phone on November 21, 2018 at 3.04 pm. Yet according to the minutes, the board meeting did not end until 4.45 pm.
The stated company secretary for the board meeting was Charles Njenga but he denied being present at the board meeting in a letter to the Registrar of Companies on August 14, 2019. “My purported signature thereon is a forgery for which I shall make a formal report to the police for investigations,” Njenga wrote.
Faced with these anomalies, the Registrar delisted Chacha Mabanga as a director of KVWGM1 on August 23, 2019.
Following an investigation by the police, the Director of Public Prosecutions decided to prosecute Ndungu Gethenji for forgery.
KVWGM1 was set up in 2010 only after the sale of the Kihingo Village houses in 2009. It purported to hold 60 B shares in KVWGM and thereby to control the affairs of the estate in perpetuity as the B shares would outvote the ordinary shares held by the 55 houses. The CR12 for KVWGM only showed 55 ordinary shares and has never recognised the 60 B shares claimed by Ndungu.
On July 28, 2016, arbitrator John Ohaga ruled that there should be no B shares and only 55 ordinary shares, one for each house on the estate. Arbitration rulings are binding and cannot be subsequently challenged. The award has not been appealed by Ndungu although he lost an application to set it aside.
The Kihingo estate was originally developed by Kihingo Village (Waridi Gardens) Limited. The equal shareholders in that company were Ndungu, Gitahi, Bob Gethenji and their mother. The three other family members agreed that there should only be 55 ordinary shares and no B shares.
Ndungu alleges that the bitter battle for control of Kihingo is a result of residents disputing his ownership of the large clubhouse at the estate. Yet there is no separate title for the clubhouse and his family would be entitled to equal shares in the clubhouse even if there were.