Justice Said Juma Chitembwe.
March 16, 2021: Mike Mbuvi Sonko drove to Mountain View Estate, Nairobi, for a meeting with former justice Juma Chitembwe. He had a recording device with him, a practice he had honed over the years to trap all those he wanted to bring down.
Accompanying him was Jimmy Ibrahim Askar, the Honorary Consul of Nepal in Kenya, and Amana Jirani, who acted as Chitembwe’s proxy in a Sh304 million land transaction.
Askar had known Chitembwe for 25 years and, thus, did not have a problem visiting the judge. As honorary consul, his task was to negotiate business on behalf of Nepalese investors, and he had found a property that Chitembwe had interests in.
This was the beginning of a long saga that would bring down Chitembwe. It was deep and murky, and as the Court of Appeal later said, involved misuse of police. It also points to corruption within the Judiciary.
Before his death at Diani Beach Hospital on December 10, 2014, German tycoon Peter Werner was the partial owner of plots 779 and 1222 in Diani, Kwale, through Okapi Estate Limited and Pacific Frontiers Seas Limited. He had an estranged wife, Imgard Beige, who had left him for David Leboo ole Kilisu.
After Ms Beige left, the ailing Werner was left under the care of Jane Mutulu Kyengo, believed to be many things. Some described her as a “former beach girl,” while others said she was “Werner’s maid”. She, however, told the court that she was a Class Eight dropout, a farmer, and Werner’s “wife after a traditional wedding”. Initially, she told the court during the succession case that she had trained as a waitress at Neptune Beach Hotel and had met Werner while working as a waitress at Tea Roof Garden.
Ms Kyengo knew that Werner had three grown-up children: Kasten Werner, Christine Werner and Thomas Werner. After Werner died, his friends were amazed at the speed at which he was cremated. The man had died without a Will, but Ms Kyengo started the process to inherit Werner’s properties with the aid of Chitembwe.
The shareholders of Okapi Ltd were Werner and Johan Stover, while the shareholders of Pacific Frontiers were Werner and Beige. In law, that would have complicated the takeover of Werner’s shareholding since these were corporate entities. But it didn’t.
Letters of administration
Chitembwe, as the Court of Appeal later found, had “stated casually” that Ms Kyengo “was within her right to file the cause and secure the properties of the deceased”. In law, the estate of a deceased shareholder is entitled to only the shares of the deceased in the company, and not to the property of the company. But in this case, Chitembwe ruled that Ms Kyengo, who had applied for the properties to be in her name and not those of the companies, was “entitled to the property as part of the deceased’s estate. The same applies to the other plots”.
When Ms Kyengo applied for the letters of administration, she knew that Werner had three children and an estranged wife. However, she did not reveal this. She also did not inform the directors of Okapi Estate and Pacific Frontiers Seas, Mr Stover and Ms Beige, respectively, that she had gone to court seeking to inherit the subject properties in which they had an interest.
Asked about this omission, Ms Kyengo claimed that she did not have their contacts, though she stated in Court that she had met Mr Stover several times at Werner’s Diani residence. She also seemed to know the whereabouts of Werner’s children, for she claimed to have informed them of their father’s demise. She claimed that they instructed her to cremate the body and dispose of the ashes according to his Will. But there was no Will.
The transfer of plots number 779 and 1222 was done with lightning speed; after all, Chitembwe had, in Malindi Succession Cause No 97 of 2015, ordered Pacific Frontiers Seas to transfer its plot to Ms Kyengo. That was on May 16, 2018. Three months later, before the expiry of six months, the standard period for the confirmation of a grant, an order was issued dated August 30, 2016, confirming the grant. This confirmation was fast-tracked because the judge was interested in plot number 779.
So many errors of omission and commission occurred. Malindi Deputy Registrar Janette Nyaga handled the succession paperwork. Though she found a variance between the petitioner’s address for letters of administration and the supporting affidavit, she thought it was “immaterial.”
She also did not check the location of the assets claimed to confirm if she had jurisdiction. She would also execute the transfer of the titles to parcels 779 and 1222 to Ms Kyengo, as directed by the court, but without the authority of the other directors. This was an illegality since the directors of the two companies had never appeared before her.
She could not explain why she allowed the succession cause to proceed outside her jurisdiction and why she ignored a protest letter dated January 11, 2016, from Okapi Estate, which decried the irregular filing outside Kwale.
On May 22, 2018, a decree was issued by the Deputy Registrar dismissing the objections to the confirmation of the grant. Chitembwe had the final say in the property he wanted.
Enter Sonko, the eccentric Nairobi governor. Before he entered politics, Sonko claimed to have acquired his wealth as a land dealer in Mombasa.
Sale agreement
Before Chitembwe concluded Werner’s estate case on May 16, 2018, Sonko offered to purchase the two plots and a sale agreement was drawn up on November 7, 2017. The company that “bought” the plots as per the sale agreement was Primix Enterprises Limited, whose shareholders were Sonko’s wife, Primrose Mwelu, and his younger sister, Mwajuma Ali.
Interestingly, other documents presented to the tribunal that investigated Chitembwe indicated that on December 14, 2016, Ms Kyengo had transferred plot 779 to Amana Jirani, who was acting as Chitembwe’s proxy. The title deed for this plot was issued on December 14, 2016, in Jirani’s name.
Ms Kyengo said she transferred the property on the advice of Mr Mangale, a former employee of Werner. This, she was told, would “protect the property against third parties” and the “three Maasais”—Leboo, Paul Ratik and Daniel Potot. They allegedly took loans using Okapi Estate, where Ms Beige was a shareholder.
Whether Ms Kyengo received any money when she transferred plot 779 to Chitembwe’s proxy is not clear. The transfer documents indicate that she sold the plot for Sh8 million. But she later denied ever receiving the money. However, she claimed that she intended to sell the property to Sonko, who had paid her Sh3.5 million as the deposit for the agreed price of Sh35 million.
Ms Kyengo had, perhaps with great naivety, thought that Jirani, the registered owner, would transfer the plot back to her “if she wished to sell” to Sonko, who had undertaken to cover her legal costs. Did she know that Jirani was Chitembwe’s proxy? She said No.
But in one of the Sonko recordings, she is heard confirming that she received Sh8 million from the Chitembwe and Sh28 million from Sonko. She claimed that Sonko had coached her on what to say when he called her to speak to the buyers. Sonko’s calls were to convince the intended purchasers who would be listening to the call that she had received the money.
Sonko alleged that Chitembwe ruled against him in the impeachment hearing because of the fallout over the land transactions.
In one of the recordings, Chitembwe was heard saying he had known Ms Kyengo for over a decade.
“She was a maid, and I have known her for the last 15 years; she was a beach girl,” he said. Why the judge would preside over a succession cause of an acquittance was baffling. Also, he could not explain why he did not sue Jirani, who had sworn an affidavit claiming that he was Chitembwe’s proxy.
Chitembwe argued at the tribunal that by conferring the grant on Ms Kyengo, he wanted her to hold it in trust for Mr Stover and Ms Beige and protect it from imposters. However, in his final orders, Chitembwe directed the Kwale County police commander and Diani police boss to ensure that Ms Beige and anyone occupying parcel no 779 vacated it within 14 days.
On July 10, 2021, a meeting was held at Justice Chitembwe’s residence on how to share the Sh305 million that investors, through Askar, had offered for the land. The appeal was still pending and was the main hindrance to the sale of the land. Chitembwe was advising the parties on the withdrawal and finalisation of the transaction. He had also advised Askar, the Nepal Consul, to await the appeal. He was also to help in reaching out to the judges.
On March 4, 2022, justices Kathurima M’Inoti, J Mohammed and S Ole Kantai set aside Chitembwe’s “entire judgment” and ordered the matter remitted back to the High Court and be determined according to the law”.
“There is also the issue of orders for cancellation and alteration of entries and records in the Companies Register and eviction of persons from the suit properties which neither of the companies had applied for, over and above the misuse of the police in civil disputes and questionable evictions, “said the judges.
In the end, Sonko lost some money, Chitembwe lost his job, and many judicial careers were tainted. The corruption within the judiciary was laid bare. Interestingly, it was Sonko’s recordings that made the difference.
[email protected], @johnkamau1
