The Supreme Court of Kenya.
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How Megvel Cartons owner lost the fight for Sh1. 6bn land in Athi River
If Joseph Karuro Claudio had a crystal ball, he would not have left Kenya for an assignment in South Sudan immediately after buying a piece of land in Athi River on the outskirts of Nairobi.
The 72-year old businessman had no reason to fret then. Many years of deal-making, some of which had gone sour, had taught him to be meticulous in any transactions he undertook.
So, before he signed on the dotted lines of a sale agreement, he had ensured that all the t’s were crossed and i’s dotted. Once he was sure that everything was tamper-proof, he paid Sh6 million for the land and then left for neighbouring country. That was in 2001.
Twenty-three years later, Claudio is still embroiled in a protracted legal battle as he seeks to regain control of the 22-acre piece of land that forlornly sits along Mombasa Road.
Instead of the workshop he wanted to build on the land, there is a massive go-down belonging to Shah Prassul, the owner of Megvel Cartons Limited.
This land has been the subject of numerous lawsuits, starting when Claudio was 50 years old. He has won all the cases except has been unable to win back the land, pointing to how slow the wheels of justice in Kenya grind.
Both the Environment and Land Court (ELC) in Machakos County and a three-bench Court of Appeal, have found that the title held by Shah was not acquired procedurally.
The Chief Magistrate’s Court in Mavoko even found Mr Shah guilty of a conspiracy to defraud Claudio of his land, handing him a three-year jail sentence.
It has been a drawn-out battle which has seen Mr Claudio accuse Shah of hiring goons to deny him entry into the land.
For Claudio, it all started on February 25, 2001. On this day, he was introduced to one Miriam Mwikali. Ms Mwikali, since deceased, was selling land which she co-owned with her husband Robert Mulei.
Mr Mulei would later tell the court that his wife was allocated the land by the area councillor who went on to become mayor in 1991.
Like many landowners in Kenya then, the couple did not have the title deed to the land. But they had an allotment letter which was in the name of their company, Maji Safi Agencies.
Claudio told the court that he verified the allotment letter at the land’s office and found it to be genuine. He then did a search and found that the land measured around nine hectares.
Before he purchased the land, Mwikali took him to its location. He never saw anyone occupying the land. Mwikali also showed Claudio the beacons of the land, together with the survey plan and Deed Plan.
The Survey Plan is for delineating boundaries while the Deed Plan is critical for purposes of title registration. Deed Plan is the document that gives rise to the title deed.
The original Deed Plan, Claudio learnt, was dated December 30, 1981.
Once he was convinced that all the documents were valid, Claudio, through his company Diesel Care Limited, entered a sale agreement with Maji Safi Agencies. He paid Sh6 million for the piece.
Satisfied with the transaction, Claudio left for South Sudan for an assignment.
In 2008, three years before Claudio returned from South Sudan, one Joseph Odero was allegedly signing the Deed of Indemnity for the same land. By doing this, Mr Odero's objective was to return the title deed held by Claudio to the government and get a new one. Mr Odero told the court that the reason was to change the user of land from agricultural to commercial.
The import of this was that, Mr Claudio would then be stripped of the ownership of the land. The title deed that he held, the court heard, had been rendered null and void once Odero returned it to government.
Later, Mr Odero sold the land to Shah. Shah's company that allegedly bought the land is Megvel Cartons.
The business man claims to have paid Odero Sh100 million for the land which the parties claim is valued at over Sh1.6 billion.
So, when Claudio came back in 2011, he was shocked to find developments on the land. It had a perimeter wall and a huge go-down.
Claudio told the courts that he politely asked Shah to vacate his land. Shah declined. Claudio then reported the invasion to the DCI, whose investigation found that the title deed held by Shah had been forged. Shah, the court heard, refused to provide the land documents to DCI for investigation.
But it was the four court cases- three civil and one criminal—that not dealt a major blow to Shah's claim on the land, they might also have opened the lid on how thousands of Kenyans are defrauded of their land.
The two Civil cases started at Environment and Land Court (ELC) through the Court of Appeal and finally to the Supreme Court. ELC and the Court of Appeal have in favour of Claudio. The Supreme Court said it had no jurisdiction to hear the case, while the Magistrate courts have found Shah guilty of a conspiracy to defraud the former of his property.
“In view of the foregoing and after a careful re-analysis and re-evaluation of the evidence, it is our finding that the appellant (Shah) has failed to demonstrate that the learned judge erred in law and in fact, in coming up with the determination in the impugned judgment,” said the three Court of Appeal judges.
The three judges included Hannah Okwengu, H.A. Omondi and M.Gachoka.
“Accordingly, we hold that this appeal has no merit and it is dismissed with costs to the respondents,” they added.
At the Magistrate Court in October 29, 2021, Judge H. Onkwani found that the title deed that Shah possessed was fake and that there was no clear evidence that he paid Sh110 million to Odero to purchase the property.
When called upon to appear for investigate by the DCI over alleged forged documents, Shah refused to declined show up or hand over the documents.
“All these point to a conspiracy to defraud; I have no doubt that the accused person conspired with other people to defraud the complainant of his land,” said judge Onkwani.
Mr Odero, 80, told the court that he acquired the land in dispute in 1985, and changed it from an agricultural to industrial around 2008.
However, unlike in other cases of change of user, Odero did not involve a surveyor before obtaining a new land reference number and deed plan.
Moreover, the Deed Plan was altered in a red pen. Investigation also found that signatures of some land officials had been forged.
Mr Shah, who claims he has made investments in the land amounting to Sh1.2 billion, did not produce evidence showing that he had paid Sh110 million for the land.
