One of the controversial land disputes former President Daniel arap Moi left behind has started playing out like a star-studded court drama, following the admission into evidence a set of instructions that his son Gideon gave to his father’s lawyers on a 20-acre parcel, worth billions, in Muthaiga.
Barely five months after US-based businessman George Kiongera’s Maestro Connections Health Systems Limited, the United States International University-Africa (USIU-A) and Equity CEO James Mwangi’s Muthaiga Luxury Homes filed cases over ownership of the land, the junior Moi tried to clarify the status of the land to Ngatia & Associates.
While the Moi patriarch was still alive, his son had already largely taken over the running of his father’s affairs and this included defending lawsuits brought against the retired President.
The senior Moi had hired Ngatia & Associates to defend him in all the three suits.
In the letter to Ngatia & Associates, the junior Moi gave instructions to the lawyers on changes to make in pleadings that were to be filed as defences in court.
The Baringo senator instructed the lawyers to indicate that his father had only sold the property to Dr Kiongera’s Maestro Connections on June 6, 2016.
“As indicated in my letter dated October 31, 2016, L.R. Number 12422/19 was transferred by His Excellency to Maestro Connections Health Systems Limited vide a transfer dated June 6, 2016 and registered as I.R. Number 36415/3.
Joreth Limited
“Consequently, Maestro is the registered proprietor of the said property and enjoys all rights to the exclusion of all others. Please amend paragraph 9, 14, 21 and prayer number 5 to reflect this position. The copy of the transfer to Maestro is herewith enclosed,” the senator said in the letter.
The Baringo MP also told Ngatia & Associates to change the name of a director in Joreth Limited, the firm that sold the land to the senior Mr Moi, from Philip to Duncan Ndegwa.
The initial pleadings, as indicated in junior Moi’s letter, stated that Philip Ndegwa was a director of Joreth Limited.
But when the former President’s pleadings were filed in court, Mr Moi denied ever selling the land and branded anyone laying claim to the property as an “interloper”.
Dr Kiongera has now filed the instructions from the junior Moi to Ngatia & Associates as evidence in court, in the hope that the judge will consider the document as an admission from the former President.
The US-based businessman’s suit has been merged with the one filed by USIU-Africa.
Mr Mwangi’s company Muthaiga Luxury Homes has now asked Justice Samson Okong’o to also merge his suit with the other two.
The land is worth at least Sh4 billion going by recent land valuations, and the fight over the property has sucked in some of the wealthiest and most well-known families in Kenya.
At the centre of the land tussle is the former president, who appears in all three versions of purchase history presented in court.
The lands registrar has also been enjoined in the suit to give evidence on the official ownership status of the property as per Lands ministry records.
Evidence
The battle has dragged in well-known individuals like former Central Bank of Kenya Governor Duncan Ndegwa, Andrew Sunkuli – brother of ex-Kilgoris MP Julius – and prominent lawyers Paul Ndung’u and Jinaro Kibet.
Before Mr Moi died on February 4, 2020, Dr Kiongera had asked the court to prioritise taking the former president’s evidence.
The businessman’s lawyer, Duncan Okatch, asked the court to allow Mr Moi’s evidence to be recorded and filed as evidence.
Mr Okatch requested that if Mr Moi could not be urgently summoned in court to testify and be cross-examined by lawyers, his testimony should be recorded on video instead and then filed in court.
“That in the alternative, the honourable court be pleased to issue a commission for the examination of Arap Moi to the chief magistrate at Milimani Law Courts to attend to Arap Moi on a date and time to be agreed upon by the parties for the purposes of taking both written and audio-visual record of his evidence in chief and in cross examination.”
“That the honourable court be pleased to admit duly executed commission together with the audio-visual and written record of the evidence of Arap Moi and order that the same do form part of the (court) record,” Mr Okatch said in court papers filed on August 19, 2019.
It is still unclear whether the request was a result of the several health problems Mr Moi faced at the time, but Justice Okong’o declined to allow the application.
The judge’s ruling was delivered on May 5, 2020 – three months after Mr Moi’s death.
Justice Okong’o, however, allowed Maestro Connections to amend its case to enjoin the lawyers who handled its purchase of the land from Mr Moi – Ochieng Onyango Ohaga & Kibet (Triple OK Law) – as defendants in the suit.
Dr Kiongera argues that one of the senior partners at Triple OK Law, Jinaro Kibet, represented Mr Moi in the sale deal. He adds that he paid Sh500 million to Mr Moi through Triple OK Law.
“Mr Jinaro Kibet, a partner of the said firm (Triple OK Law), indeed personally and in his professional capacity as an advocate did witness and indeed attested to the former President appending his signature to both the agreement of sale and the transfer document and indeed in respect to the agreement he issued a certificate therein so stating that he so witnessed the former President append his signature,” Mr Kiongera said.
The businessman added that a search he conducted at the Lands registry in 2016 revealed that Mr Moi was the registered owner of the property.
Professional negligence
After Mr Moi denied selling the property in 2019, Dr Kiongera amended his suit to include Triple OK Law as a defendant, arguing that Mr Kibet handled the Sh500 million deal after stating that the former President had okayed a sale.
Triple OK Law has in the past handled other matters for Mr Moi.
Dr Kiongera argues that if the courts rule against him, then Mr Kibet and Triple OK Law should be cited for professional negligence in handling a land transaction for property that was not available for sale.
The businessman holds that he has spent Sh77.2 million in paying lawyers, stamp duty, finder’s fee, fencing and security for the property since 2016 when the land saga broke.
When the retired President died, lawyer Zehrabanu Janmohammed was appointed administrator of his estate, and she has now replaced Mr Moi in the suit.
Mr Moi’s estate has retained the services of Ngatia & Associates in the suit.
Muthaiga Luxury Homes, owned by Equity CEO Mr Mwangi, says it bought the land in 2012 for Sh300 million.
“Prior to the purchase, Muthaiga Luxury Homes conducted an official search on the property at the Central Land Registry and ascertained that the same was owned by Mr Moi and was unencumbered thus was available for sale,” Mr Mwangi says in court papers, adding that Muthaiga Luxury Homes purchased the said parcel of land vide a sale agreement dated February 23, 2012.
“The plaintiff paid stamp duty and the transfer in its favour was duly registered. Upon registration of the transfer, Muthaiga Luxury Homes paid the full purchase price of Sh300 million to Mr Moi,” Muthaiga Luxury Homes added.
Mr Mwangi’s firm dealt with Andrew Sunkuli and lawyer Omwanza Ombati in 2012.
Mr Sunkuli and Mr Ombati said they received instructions from Mr Moi to sell the land.
The two will present their testimonies to court at the hearing of the three cases.
USIU-Africa, for its part, says it bought the land in 1999 from insurance firm ICEA for Sh90 million.
The university holds that ICEA bought the land from a company called DPS International.
USIU-Africa adds that DPS International bought the land from Mr Moi, who acquired it from Joreth Limited for Sh600,000.
Prime land
Joreth Limited is also at the centre of several other prime land disputes across the country as an original owner.
Most recently, the firm has been at the centre of the Muthaiga land battle and the Ruaraka land saga where taxpayers are believed to have paid to acquire what was already public land.
Initially, Mr Moi’s pleadings stated that Philip Ndegwa, Kenya’s second post-independence CBK governor, was a director of Joreth Limited.
But the junior Moi, in his letter to Ngatia & Associates, asked the lawyers to amend the claim to read that Duncan Ndegwa, Philip’s predecessor, was the Joreth Limited director.
The document further stated that Philip was a director of DPS International and ICEA, which both handled the land before selling it to USIU-Africa.
When USIU-Africa filed its case against Mr Moi, Dr Kiongera and the Lands ministry hired lawyer Paul Ndung’u to represent it.
But USIU-Africa severed ties with Mr Ndung’u after it emerged that the lawyer was a director in DPS International, presenting a conflict of interest.
Mr Ndung’u has since said in court that he witnessed Mr Moi sign an agreement to sell the land to DPS International. The lawyer also represented USIU-Africa when it paid Sh90 million to ICEA in 1999. BY DAILY NATION