Hezekiah Oyugi project that still haunts government

This is a classic case of deceit and might be murkier than we know.

Of all the powerful Internal Security Permanent secretaries of the Moi regime, Hezekiah Oyugi was in a class of his own. Here was a man who tried to stop Scotland Yard detective John Troon from announcing that he was treating the death of Moi’s Foreign minister, Dr Robert Ouko, as homicide and not suicide.

It is now 28 years since Oyugi’s mysterious death in London on August 8, 1992. But this is not about the murder of Dr Ouko but about a police project that Mr Oyugi was involved in and which apparently shows the convolution and evolution of land deals in Kenya.

To start with, there is a group known as Wilson Mutumba Women’s Group, which has been laying claim to a multibillion-shilling housing property in Langata. I sympathise with them. Here is the full story,

Like all the projects awarded to Ugandan contractor James Mugoya, the powerful and well-connected construction baron of the Moi regime, this was yet another of those that would end up with an element of scandal. When it existed, Mugoya Construction and Engineering company had virtual monopoly of government contracts and vice during the 24 years of Moi rule. It won the best tenders that money could buy. That is how we ended up with Mugoya Estate in Nairobi and in Nyali – named after a tenderpreneur.

So well-connected was Mugoya, who walked around with a Kenyan ID, that Oyugi had actually written to Charles Mbindyo, the Treasury PS, proposing that Mugoya Construction should be given the task to build the houses since the government had already set aside money in the 1987/88 budget. It was Mr Mbindyo who granted authority to Mugoya for what was to be a Turnkey project for 1,600 units. His letter was dated June 10, 1987.

A month later, on July 8, 1987, Mr Oyugi wrote another letter to Commissioner of Lands Jonathan Njenga, informing him that President Moi had directed that the land between Wilson Airport and the modern-day Southern Bypass be preserved for a housing project for CID and Special Branch personnel. The 70-acre parcel was given the number LR 209/10610. It was, back then, worth hundreds of millions.

What we also know, from records, is that on July 14, 1987, the Director of Physical Planning, John Ohas, had written to Eliakim Masale, the Permanent Secretary at the Ministry of Works and Housing, saying he had identified a site for the “proposed housing development for security personnel”.

Mr Oyugi later realised that the Internal Security did not have enough money for the 1,600 units and revised the number to 600. He wrote a letter dated September 15, 1987 to the PS for the Ministry of Works, confirming the downsizing of the project.

By this time, President Moi was under pressure from Western donors to respect human rights and stop pilferage of public funds. It was the year he was forced to cut short a visit to the US and Norway after he earned criticism from the US Congress.

Records indicate that on October 13, 1987, Mugoya was finally awarded this Sh866 million tender to construct West Park houses. Mr Oyugi indicated in the award letter to Mugoya that the date of possession was November 1, 1987 and the completion was set as September 9, 1991.

Court records indicate that Wilson Mutumba Women Group was registered on December 28, 1988 under the Ministry of Culture and Social Services – as a harambee self-help group – just about the time Mugoya had started the construction. By this time they did not seem to have a title to the land but with that certificate they could legally raise money.

It is not clear who told Mutumba Group members that the houses being built by Mugoya belonged to them – but the members booking the houses must have been shown the police project.

New scrutiny

After the death of Dr Robert Ouko in February 1990, Moi earned new scrutiny over his human rights record and donors started pegging their aid to reforms. The main donors, Britain, Canada, France, Germany and Japan, started criticising what they called the Moi Government's misuse of public funds.

With no money to run government projects, the police project collapsed in January 1991 after creditors suspended aid to Kenya amid fierce international condemnation. That was the year when Kanu was under pressure to remove Section 2(a) of the Constitution, which had turned Kenya into a de jure single party state.

The Moi regime then abandoned the project and Mugoya walked out. What would later follow is a series of court battles to determine who between Wilson Mutumba Women Group and the Government owned the project.

The Wilson Mutumba Women Group, led by a Mr Joseph Mburu Gitau, have been telling the courts – and for many years – that with the assistance of Oyugi, they proceeded to build the residential houses “with the assistance of a donor”.

A question

Could, then, Oyugi have lied to this group and perhaps received money from the more than 600 members who expected to be allocated the houses? While that has not emerged in the court papers, the Mutumba group had a title no LR 209/14582 issued in November 1991 – a month after Mr Oyugi was removed as permanent secretary and after he was named in the investigations into the murder of Dr Ouko.

The group says it was allocated the land in November 1990 – just about the time that the project was about to collapse. Why they mention Oyugi in their court papers is quite baffling.

What we now know is that members of the Mutumba Group – and those from nearby Wilson Airport slums – moved into and occupied the incomplete houses.

It was only after Mwai Kibaki came to power after the Narc victory that he asked then Vice-President Moody Awori to undertake an audit of all the government projects that had stalled. On September 20, 2005 the Kibaki government awarded Dick Githaiga’s Dimken (K) Ltd a tender to complete the houses at a cost of Sh1.4 billion.

That is the time Mutumba Group went to court seeking to block their eviction; though by the time they filed the case, the police had already kicked them out.

Continue occupation

But in the Miscellaneous Application No 673 of 2005, the Mutumba Group was allowed by Justice J.G Nyamu to continue their occupation of the houses. Interestingly, the State Counsel had told the Court that the government “does not lay claim to the property”.

On May 2, 2008, Justice Nyamu held “that (Mutumba Group) are in the circumstances only entitled to the order of prohibition since the property is still registered in its name”. But was that title genuine? That would emerge later.

After this, the Mutumba Group officials tried to gain access to the property and were arrested and charged with trespass. They presented, once again, Title LR 209/14582 as their ownership document. Failure by the Attorney General to produce the title for the View Park Patrol Base saw Mr Joseph Gitau and Mr James Kariuki win the case and they have used it to show members that they actually owned that project.

But the police then filed Criminal Case No 1733 of 2008 and accused the Mutumba officials of making a false Letter of Allotment Ref 33408/IV and tabling fake stamp duty receipts.

During this trial, it emerged from the Government Printer that the stamp duty receipt with Serial Number D216395 was not for Nairobi but for Nakuru DC.

Fraudulent document

Also, the Government Printer told the Court that Title LR 209/14582, and which had all along been used by Mutumba Group, was fraudulent – and that was why the government was not laying claim to it.

A Survey of Kenya official told the Court that the survey plan that had been filed by Mutumba Group in court had his signature faked while another official told the court that the Deed No 135741, which was annexed to Mutumba’s title, was not made for that land. The Director of Survey gave a certified copy of survey number 135741, and which was for a plot in Nyahururu Town and not Nairobi.

Land officials told the court that the letter of allotment and the title deed did not originate from the lands office “and their authenticity was wanting”.

The official who was said to have signed the title told the court that by the time she was purported to have signed she was still under training.

Having heard that, Magistrate Martha Mutuku said: “While it has already been established that the documents were ostensibly forged, it has not been shown that it was the accused person who uttered the documents to the registrar of the High Court, who notably was not identified.”

Same forgeries

Ms Mutuku said the accused had no knowledge that the documents were forged, though he had used the same documents to get a favourable judgment.

“It is important to note that a person can and will be charged with perjury even after obtaining a judgment in his favour through perjury. This is because judges often base their verdicts, sentences or other important decisions on sworn testimony and signed documents.”

But despite that observation, Mutumba Group has been using LR 209/14582 title to file other cases in court – and using Justice Nyamu’s ruling to argue their case.

That was not the only time that Mutumba Group had laid claim to land within Langa’ta.

In 2005, it had taken Ukay Estate Limited to court, claiming that it owned L.R. No.209/12527. In his ruling, Justice J.B Ojwang posed: “Is it permissible that a body of no true juridical status, ‘Wilson Mutumba Women Group’ can come to Court wielding a land title in its own name? That would defeat the recognized mode of legal reasoning.” He reasoned it would take legal ingenuity to create a “legal personality” out of the Mutumba Group.

The suit is scandalous, frivolous and vexatious

The Chief Land Registrar also said the title held by Mutumba “is unknown to the Lands Office”.

“Then, how can such a claim of land title, not shown to carry bona fides, be a valid and proper basis for moving this court? I must, with respect, agree with counsel for the defendant, that the suit is scandalous, frivolous and vexatious, and an abuse of the process of the court. The court’s time and resources are finite, while the demands legitimately made on the same by suitors is utterly stupendous,” said Justice Ojwang in his July 2005 ruling.

But on August 7, 2020, the Court of Appeal brought this lengthy say to a near end by throwing out Justice Nyamu’s ruling. It held that judicial review proceedings against the (government) were not the appropriate forum for (Mutumba Group’s) grievances concerning the threat to its title.

Case losses

But this is one case which has exposed how the AG’s office loses cases. The Court of Appeal observed: “We must add our disappointment and concern at the manner in which this matter was handled. Both the appellants who are Government agents in the legal sector and the Attorney-General, who represented them, behaved in a manner that depicted little respect for the legal process.”

“The appellants have since filed applications in which they challenge the respondents’ title contending that it was fraudulently obtained. We wonder why that information was never placed before the learned judge. The learned judge could only act on what was before him.”

It is hard to know what was being plotted here and why officials from the AG’s chamber did not lay the documents before Justice Nyamu. In the process, some people have lost millions of shillings. And this is only half the story of this land near Wilson Airport.

Whatever role Hezekiah Oyugi played here; whichever donor was “building” the houses for Mutumba Group could be a fairy tale. I have yet to see any documents on the donor or the contract between the donor and Mutumba Group. To those who are set to lose money here, sorry folks – and welcome to "Nairoberry".