The family of ex-chief Noah Kipngeny Chelugui is seeking to blow the dust off Kibaki-era wealth audits and use them in its land battle with the family of former President Daniel Moi, a move that could put several past and current government officials on the spot over billions in ill-gotten wealth.
In asking the Supreme Court to admit into evidence and rely on reports commissioned during President Mwai Kibaki’s administration, Mr Chelugui’s family has reopened the debate on retributive actions such as repossession of public land that found its way into the hands of wealthy, well-connected politicians.
Among the documents, the Cheluguis want to be admitted in court as evidence are the Ndung’u report that detailed the irregular transfer of land worth billions, the Kroll report that dug into former President Moi’s vast wealth and the Kenya National Commission on Human Rights’ unjust enrichment report that exposed powerful Moi-era politicians and their cronies benefited from corruption.
Should the reports form part of the court record, they could open the door for recovery of some of the prime lands documented in them, and which could affect the families of at least three sitting governors, a sitting MP and several other active politicians.
The three governors are scions of powerful Moi-era politicians who were named in the Ndung’u report as having been allocated public land in the former Rift Valley and Eastern provinces.
The MP, a veteran who recently recaptured his seat in the North Rift, is said to have been allocated 20.8 acres of land illegally excised from the Kiptagich forest.
A former MP who lost in the 2022 elections in the South Rift, was allocated a government house meant for serving civil servants during his days as a Kanu member in the 1990s.
Several politicians, including a former governor who recently mended fences with President William Ruto, were each awarded 10.4 acres of Kiptagich forest land.
The list of shame also has a former NYS boss who was allegedly allocated public land meant for a school playground and church in Langata.
The Ndung’u and Kroll reports were commissioned by Kibaki as part of his promise to recover billions of shillings and prime land looted from the Kenyan public during the reigns of his predecessors – Jomo Kenyatta and Moi.
For close to two decades, the Ndung’u report has been among several documents gathering dust in government cabinets despite detailing irregular wealth acquisition by powerful elites at the expense of taxpayers.
The report exposed how state corporations sold some of their prime land to individuals and companies at scandalously low prices. The well-connected buyers of such lands then sold them at very high prices to other state corporations.
Through their lawyer Ahmednasir Abdullahi, Susan and David Chelugui argue that admitting the reports in court as evidence will show that the former strongman was a serial land grabber who used his position to acquire illicit wealth, including their 53-acre land in Eldoret.
Susan is Mr Chelugui’s 87-year-old widow, while David is their son.
The family holds that the documents if admitted into evidence, will show the true David vs Goliath nature of the battle pitting the Cheluguis against Mr Moi’s family.
“The appeals are not between two ordinary mortals. The appeals are a tussle between the estate of former President Daniel Toroitich Arap Moi and his neighbour in rural Kenya. Both the appeals and the evidence the applicant seeks to adduce touch on issues of great public importance and accountability,” Mr Abdullahi said.
The Cheluguis have also sought to enter into evidence a report on land grabbing specific to Eldoret.
The Chelugui family says that Moi was sly to the end, as he intentionally hid the value and specifics of his estate from the will presented to courts for succession as part of a ploy to avoid scrutiny on some of the assets he allegedly acquired illegally. Moi died in February 2020.
The land battle started in 2014 when the Chelugui family sued Moi and the Jaswant Rai family-owned Rai Plywood seeking a return of the property or compensation at prevailing market rates. Justice Anthony Ombwayo in 2019 ordered Moi and Rai Plywood to pay the Chelugui family Sh1 billion. Moi challenged the decision at the Court of Appeal sitting in Kisumu but died with the appeal pending.
Moi’s family appointed lawyer Zehrabanu Janmohammed as the estate’s executrix, leaving her in charge of the former President’s affairs, including court cases.
In July 2022, Court of Appeal judges Patrick Kiage, Kathurima M’Inoti and Mumbi Ngugi upheld Justice Ombwayo’s decision, and the award doubled to Sh2 billion on account of interest.
Ms Janmohammed filed the Supreme Court case in October 2022.
The Chelugui family now argues that the reports it wants to attach will give the Supreme Court a full picture of the case as they are not taking on an ordinary Kenyan.
The Kroll and Ndung’u land reports both concluded that Moi and his family were among the biggest beneficiaries of irregular land acquisition in Kenya before the Kibaki government assumed office in 2002.
“The tenure of the petitioner/respondent (Moi) as President of Kenya provides the background canvas upon which the present appeals are painted on. Thus, additional evidence of his era that paints a true mosaic of the appellant’s overreach with regard to how he acquired public and private properties are both important and germane,” David says in his affidavit.
“In his last will dated November 15, 2005, drawn by Archer & Wilcock Advocates, the petitioner/respondent engages in a classic act of subterfuge when he totally hides his assets and omits completely the value of the estate ... The character and ingredients of the estate cannot be disclosed because it is not just obscenely vast but consists entirely of items looted from the public and private individuals,” David adds.
In an attempt to delve into Moi’s wealth, the 110-page Kroll report stated that over £1 billion (Sh153 billion) was looted from Kenyan coffers by the former President and his close associates, with the wealth spread in bank accounts across at least 30 countries. Most of the countries where the wealth was allegedly stashed are tax havens with stringent secrecy laws barring the revelation of the bank account or asset owners.
The High Court and Court of Appeal had earlier found that Moi acquired the 53-acre land claimed by the Cheluguis on September 21, 1983, by issuing a presidential directive that it be registered to him. Moi sold the property to Rai Plywood for an undisclosed amount in 2007. The sale happened two years after the former chief died.
Justices Philomena Mwilu, Smokin Wanjala, Isaac Lenaola and William Ouko last year issued orders suspending the execution of the Court of Appeal decision. The judges also declined a request by the Cheluguis to have the Moi and Rai families deposit the award in court pending the determination of the final appeal.