Complex land battles former President Daniel arap Moi was fighting at the time of his death last year have come back to haunt his family.
Plans by Moi kin to share out billions of shillings he left behind in cash and property have been scuttled by at least two claims totalling Sh4.5 billion.
Two of Moi’s rivals in land cases have asked the High Court’s family division to halt execution of the former Head of State’s last written Will until their Sh4.5 billion claims are set aside to cater for compensation packages arising from property wars.
The family of former chief Noah Chelugui wants Sh2 billion set aside for an award the Eldoret High Court gave, while US-based businessman George Kiongera argues that Sh2.5 billion should be reserved to refund his purchase of a disputed 20-acre plot in Nairobi’s Muthaiga suburb.
In a fresh twist, Moi’s family has now tasked lawyer Zehrabanu Janmohammed with taking over their patriarch’s legal battles and wants her to revive an appeal against the case that bore the Chelugui family a Sh2 billion court-ordered award.
Last year, as the Moi family was in court laying the foundation for his succession, an appeal the former President had filed against the Cheluguis in Kisumu was gathering dust at the Kisumu Court of Appeal registry. Under Kenyan law, appeals to High Court cases are considered dead if no action is taken on them for more than one calendar year.
In 2019, Moi, alongside Rai Plywood (K) Limited, had been ordered to pay the Chelugui family Sh1 billion for illegally taking possession of their 53-acre farm in Eldoret town.
High Court judge Antony Ombayo found that Moi abused his position as President in 1983 to irregularly wrest ownership of the Eldoret farm from Chelugui before selling the prime property to the Jaswant Rai family-owned Rai Plywood.
Moi died after filing the appeal but before securing orders to suspend Justice Ombwayo’s verdict and consequent orders.
As Moi’s succession was being sorted out, interest pushed the High Court’s award to Mr Chelugui’s to approximately Sh2 billion.
Since the former president’s appeal has remained dormant at the Kisumu Court of Appeal, the case is officially dead, a move that could expose the Moi family to attachment action by the Cheluguis.
Moi appealed against Justice Ombwayo’s orders in May, 2019, meaning the case legally collapsed a year later. Such cases can, however, be revived by requesting the Court of Appeal to do so and providing reasons why no action was taken for more than one year.
Neither the High Court nor the Court of Appeal had issued orders suspending implementation of judge Ombwayo’s orders, a situation that could open the door for the Cheluguis to start attachment proceedings against the Mois.
To avert such action, the Moi family is looking to have Ms Janmohammed take over the former president’s role as appellant in Kisumu, where she is expected to challenge Justice Ombwayo’s decision.
Lawyer Juma Kiplenge, who represented Moi at the High Court, says in fresh filings that the appeal died a natural death in the course of filing an application to have Ms Janmohammed replace Moi.
Lawyers William Arusei and July Kiget for Ms Chelugui will be opposing the application to substitute the executor of Moi’s Will.
In her application to replace Moi, Ms Janmohammed is also asking the court to revive the abated appeal.
“In the year 2020 after following the due process required under the provision of the various succession regime laws, Ms Janmohammed was issued with a grant of probate to act as the personal representative to the estate of the deceased (Moi).”
“In the process of filing an application seeking orders to substitute the late Daniel Toroitich arap Moi through the Judiciary e-filing system, this matter unfortunately abated. It is only fair and just that the matter herein be revived and the personal representative of the estate of the deceased be substituted as the legal representative of the deceased, the defendant in this matter,” Mr Kiplenge says.
Set aside for award
Through Mr Arusei, the Cheluguis filed an application at the family court to stop distribution of Moi’s wealth unless Sh2 billion is set aside for their award.
Interestingly, US-based businessman Kiongera has filed a similar application at the family court, arguing that the Mois should set aside Sh2.5 billion so that his interests are catered for in the event he wins a separate land battle against the former President.
When Moi died, he was fighting off a complicated land battle as the United States International University-Africa (Usiu-A), Equity Bank CEO James Mwangi and Dr Kiongera had all sued him over a 20-acre property in Nairobi’s plush Muthaiga suburb.
The Usiu-A, Mr Mwangi through Muthaiga Luxury Homes Limited and Dr Kiongera through Maestro Health Connections Systems Limited all claim ownership of the prime land, with all their purchases tracing back to the former president. The Usiu-A holds that it bought the land from ICEA in 1999 for Sh90 million, while Mr Mwangi said he bought the same property from Moi in 2012 for Sh300 million.
In court, Moi insisted that he still owns the land and has never sold it to anyone, terming anyone claiming the property an interloper. Dr Kiongera has revealed that he is claiming Sh2.5 billion from Moi, an amount that should be set aside from the former President’s estate to avoid a total loss in the event that his claim before court succeeds.
Mr Duncan Okatch, Dr Kiongera’s lawyer, holds that allowing the property to be shared out alongside other Moi assets could complicate recovery once the land case is determined.
“While appreciating and respecting the sensitivity and privacy of the estate of Mr Moi and the beneficiaries therein, but balancing the need for Maestro Health Connections Systems to be guaranteed of a just conclusion to ELC 771 of 2016 (the land case), the applicant has a legitimate expectation that this honourable court will allow counsels for the applicant to peruse Mr Moi’s will in presence of the court to verify whether the suit property is listed as part of the estate of Mr Moi,” Mr Okatch says.
Dr Kiongera says he paid Sh500 million to Moi’s advocates, TripleOKLaw. The land is now valued at Sh1.6 billion.
Aside from claiming the Sh1.6 billion valuation of the land, Dr Kiongera also wants the Mois to pay him for several costs incurred since 2016 in relation to the prime property.
The costs include a penalty for delayed completion during purchase (Sh15 million), security services (Sh7.6 million), construction of a perimeter wall (Sh19.6 million), legal fees (Sh5.6 million), finder’s fee to Diaspora Global Investment (Sh15 million) and stamp duty (Sh24 million). He is also claiming loss of profits that would have been derived from using the land to conduct business and special and general damages.
Dr Kiongera has, however, left it for the lands court to decide how much to award for the claims. The businessman’s lawyer, Mr Okatch, has also sought to block the sale, transfer or lease of the Muthaiga land.
Orders barring payment
Chelugui died in 2005. Four years later, his widow and son sued the former President and Rai Plywood seeking recovery of their prime land, a suit they won.
Moi challenged Justice Ombwayo’s decision at the Court of Appeal in Kisumu, but the former President died on February 4, 2020 before the appeal could be heard.
At the time of his death, Moi had failed to secure court orders barring payment of the Sh1 billion compensation package.
In a bid to avoid potential attachment, the Moi family has now tasked Ms Janmohammed to replace the former president in the appeal. In October, the lawyer was appointed administrator of Moi’s estate as per his Will.