EACC recovers Sh5bn Met Dept land grabbed 23 years ago

The Ethics and Anti-Corruption Commission (EACC) has recovered a 53-acre piece of land worth at least Sh5 billion that was grabbed from the Kenya Meteorological Department 23 years ago.

Justice Elijah Obaga of the Environment and Lands Court has ordered the cancellation of title deeds issued to five companies for the land, and that the firms be barred from trespassing onto the property.

The recovery proceedings commenced in 2009 meaning it has taken the anti-graft agency 11 years to recover the public land grabbed in 1997 through fraud practices at the Ministry of Lands.

Former President Daniel arap Moi’s directive in 1999, for all government agencies to process title deeds for land they owned, set in motion a grabbing spree, and the Met was one of the victims.

WHAT HAPPENED

When the Met started pursuing title deeds for its land, it discovered that 53 acres had been grabbed, subdivided and shared among five companies in 1997.

Much like hundreds of other large pieces of public land, then lands commissioner Wilson Gachanja was at the centre of the illegal allocations to the five private firms ,which got different acreages.

Varun Industrial Credit Limited (15.4 acres), Hillbrow Properties Limited (9.87 acres), Pamba Properties Limited (7.33 acres), Brentwood Traders Limited (9.03 acres) and Beacon Towers Limited (11.6 acres) were the new owners of the land.

The five companies were incorporated on different dates between May 1995 and September 1997.

Upon incorporation the firms had only two shareholders - Kantibhai Maganbhai Patel who had 99 shares and Harish Ashabhai Patel who had one share.

A third director of all the five companies is Pritibala Shah who was appointed on June 15, 2007 without shares. She is the daughter of Kantibhai Maganbhai Patel, who died on December 10, 2007.

The land had two blocks of houses, a transmission station, 14 masts and a generator room.

The Met previously used the station to transmit vital information to sea vessels and aircraft that would be used to determine safety of travel.

New technology in sharing that information rendered the station obsolete, and plans were underway to convert it into an air monitoring system before the land was grabbed.

THE RULING

Justice Obaga rejected the argument by the defence that at the time of allocation of the land, there were no houses and masts were rundown. This was not the case when the court visited the site.

“The station which used to broadcast is still there. This is the same case with the standby generator house which has a huge generator in it. There was no boarding of these facilities in accordance with the Government Financial Regulations,” he said.

The court found that when alienating the public property, the then Commissioner of Lands was “deeply interested in perpetuating fraud which was initiated by Beacon Towers Ltd”.

“One cannot have over 50 acres in occupation of a government department and claim it was an innocent investor. Mr Gachanja conceded while under cross examination that the five companies are not trading,” said Justice Obaga.

He said this confirmed the companies were solely incorporated for purposes of taking away land reserved for the Met.

“If this is not fraud, then I do not know what other fraud the EACC was expected to prove.”

The EACC has the title for the suit property and will use it as an exhibition the possible criminal prosecution of persons found culpable of illegal allocations.

The judge noted that when the five companies, which have the same directors, were being allocated the land, the Met was still in occupation and staff houses were still in place and occupied.

POWER

Court proceedings filed by the EACC against the five companies and Mr Gachanja further revealed how powerful the former lands commissioner was during the Moi era.

Former Lands Chief Officer Jotham Kilimo testified that he was forced to approve the irregular transfer because he received orders from Mr Gachanja.

Mr Kilimo added that defying Mr Gachanja’s orders could have cost him his life so he agreed to the irregular land transfer.

Mr Gachanja’s signature was the only one on the part development plan, a document used in land transfer processes. There was no presidential approval on the document as required by law.

The court held that Mr Gachanja had no powers to allocate the land to the private firms since only the President had the authority to alienate land for industrial purposes.

Interestingly, the 11.6 acres allocated to Beacon Towers was grabbed in 2008 after two individuals - Maurice Aldous Opar and Enock Tuitoek - posed as Beacon Towers’ owners and transferred the land to Trent Holdings Limited.

But Ms Shah, now in control of her father’s interests in all five companies, successfully sued to stop the transfer to Trent Holdings.

When the EACC sued to recover the land, the five companies argued that the anti-graft watchdog did not produce an official search of the property which would have been crucial ownership evidence.

They added that the transmission station ceased to exist when the Mett moved its headquarters to Ngong Road.

SEARCH POINTLESS

Justice Obaga ruled that the Met’s headquarters have always been on Ngong Road and that evidence in court proved the land was illegally transferred to the five companies.

The judge added that a search of the land by the EACC would have been pointless as the property was already registered to the five companies by the time the Met  started pursuing ownership documents in 1999.

“The court visited the site, which is along Enterprise Road in Industrial Area. The court confirmed the evidence adduced by the EACC on what was on the ground. The suit property was not available for alienation as it had been reserved for the Met. Mr Gachanja, in purporting to alienate what was not available, exceeded his powers,” Justice Obaga ruled.

He ordered the Lands ministry to cancel the title deeds issued to the five companies.