How to get away with land grabbing

Justices Milton Asike-Makhandia, Jessie Lesiit and Pauline Nyamweya have reversed a High Court judgment that had allowed the three brothers to not only take back the land, but also take ownership of the rent-earning commercial complex that Tarabana had developed on the land.

Tarabana Company Ltd had asked the Court of Appeal to protect it from losing the commercial complex, arguing that it was an innocent purchaser that acquired the land from another private developer, Rospatech Ltd.

The firm added that it took a Sh61 million loan using the land as security, and that the rental income from Tarabana Plaza has been going to repaying the debt.

The Singh brothers held that Tarabana started construction after they had sued to recover the land, and therefore, the firm knew there was a risk that it could lose the case and by extension, possession of the property.

The appellate judges ruled that it was unfair to evict someone from a piece of land when there is no evidence that the current occupant was involved in grabbing the property.

Land owners

While the decision will receive a warm welcome from victims who have been duped into buying grabbed land, it is likely to aid unscrupulous individuals with a knack for stealing other people’s property.

Thousands of individuals and companies are entangled in court cases involving loss of land in circumstances not too different from that of the Singh brothers.

This means that several land owners could lose their property because they are unable to prove that the people occupying their property were directly involved in the fraudulent transfers.

The Singh brothers have, however, asked the Supreme Court to wade in and reinstate the judgment that Justice Kossy Bor delivered in July, 2019.

Aside from awarding the Singh brothers the land, Justice Bor had also ordered Rospatech and Tarabana to compensate the siblings with Sh25 million in damages.

The brothers would have also earned rental income from Tarabana Plaza, which currently sits on the land and has several tenants.

The court’s decision on innocent purchasers is one of the grounds the brothers want to challenge. The three-judge bench said there was no proof that Tarabana had played any part in the irregular acquisition of the title deed to the property.

Paying land rates

“There was no evidence adduced before the trial court to show that Tarabana played any role, or was involved in any way in the said process. If title was acquired by fraud, or misrepresentation, illegal, unprocedural or corrupt scheme, the same was before the Tarabana came into the picture. We, therefore, find that Tarabana was a bona fide innocent purchaser for value for these reasons, and its title could not and cannot be challenged,” said the judges.

“In any event, issues pertaining to irregular allotment and acquisition of government or public land fall squarely within the mandate of the National Land Commission (NLC). For reasons that we might never know, NLC chose not to investigate the complaint and take remedial measures. Tarabana cannot, therefore, take a fall for this inaction,” they added.

Further, the brothers were ordered to shoulder the expenses borne by Tarabana at the Appeal court.

The brothers bought the land in 1968 and it had a lease that was to expire in 2001. They began the lease renewal process, which stalled along the way because the file pertaining to the land went missing from City Hall’s vaults.

However, they continued paying land rates and wrote to various offices seeking guidance on the renewal. In 2014, they said in court, they were shocked when bulldozers invaded their property under police protection and tore down the developments there.

The High Court had stated that the brothers had a legitimate expectation that their lease would be renewed, as they even continued paying land rates.

Rospatech, the firm that mysteriously acquired the land despite the missing records, has Martin Njuguna Ngugi listed as one of its directors.

Axax

The Registrar of Companies’ records further shows that Charles Kiri Thube is a director of Tarabana company.

The circumstances under which Mr Njuguna’s Rospatech acquired the land are the subject of a criminal case that is still ongoing at the Chief Magistrate’s Court.

Mr Njuguna has been charged with acquiring the property illegally.

In the course of the High Court proceedings, Tarabana opposed a proposal to have the NLC investigate the land.

Interestingly, the Chief Land Registrar argued that Justice Bor had taken up the role of the NLC in ordering that the property be returned to the Singh brothers.

Harbhajan, one of the siblings, who was the only one among the brothers to witness Rospatech’s forcible acquisition of the property in 2014, died just one month after Justice Bor delivered her judgment.

Harcharan and Jaswaran are elderly, with the former having moved to the UK.

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