BY Payton Mathau
Controversy of the ownership of ninety-seven acres of land in Ruaraka for which a businessman has been compensated is as confusing as its history.
While one indenture document indicates that the land, which retains its original number, L.R. No.7978/4, was purchased by Afrison Imports Exports and Huelands Ltd from Joreth Limited on December 29, 1981.
Another transaction dated November 30, 1982 is purported to have been conducted between Edward Whittaker and Afrison Imports Exports Limited.
“This indenture is made the 29th day of December One Thousand Nine Hundred and Eighty One between Joreth Limited, a liability company incorporated in the Republic of Kenya, having its registered office at Nairobi and of Post Office Box Number 47122 Nairobi aforesaid (hereinafter called “the vendor”, which expression shall, where the context so admits, include its successors and assigns) of the one part, and Afrison Export Import Limited, a limited liability company incorporated in the Republic aforesaid and of Post Office Box Number 40469 Nairobi and Huelands Limited, a liability company incorporated in the Republic aforesaid and of Post Office Box 57192 Nairobi (both of which are hereinafter called “purchasers” which expression shall where the context so admits include their respective successors and assigns) of the other part,” reads the indenture in part.
The indenture had earlier been registered in the Government Lands Registry at Nairobi in Volume N 43 Folio 302/1 for the parcel of land measuring 168 acres initially to Gladys Thomson vide Plan Number 47389.
Another indenture dated November 30th 1982 was entered between Edward Whittaker and Afrison Export Import Limited, this time of P.O. Box 46817 Nairobi.
The indenture for the same land had initially been entered on 3rd October 1908 in the registry of Deed Office in Nairobi as Number 286 of A 1908 between His Most Gracious Majesty King Edward the Seventh on one part, and the Upper Nairobi Township and Estate Company Limited on the other.
It is part of this land that city tycoon Francis Mburu and his two sons Justin Sam Mburu and Mark Mungai Mburu, who are directors of Afrison Export Imports Limited, Huelands Limited and Whispering Palms Estate Limited have been compensated for by the government on various occasions for the General Service Unit (GSU), Outer Ring Road expansion, Thika Super Highway, the Ruaraka High School and Drive Inn Primary School.
More compensation will be paid to Mburu for the four acres occupied by the Ruaraka Chief’s Office and AP Camp, as well as for another 22 acres scheduled to be taken over by the County government of Nairobi for a matatu terminus and market.
What is interesting, however, is that four days after Afrison Export Import Ltd and Huelands Ltd were paid Sh1.5 billion by the National Land Commission (NLC), through a sister company, Whispering Palms Estate Ltd, the Financial Reporting Centre (FRC) flagged twenty-one banks accounts into which monies had been transferred.
The Sh1.5 billion was part payment of Sh3.2 billion compensation reached at between the Ministry of Education and Mburu for the 13.5 acres on which the two schools sit.
In its quest to further investigate, FRC obtained a court order to freeze the 21 bank accounts belonging to the businessman’s companies, his lawyers, debtors and business partners.
An affidavit sworn by Chief Inspector of Police Mike Muia sought an order to freeze the twenty-one accounts.
The detective had sought banks statements for ten accounts held at Barclays Bank of Kenya, one at NIC Bank, one at Co-operative Bank, eleven at Equity Bank, two at Diamond Trust Bank, two at Kenya Commercial Bank, one at ABC Bank, one at I&M Bank and another at Consolidated Bank.
The investigator had sought for account opening documents, cheques transacted in the accounts, deposit/withdrawal slips, outward and inward transfer documents transacted from January 30, 2018 and February 5, 2018, bank statements for the same duration, as well as a funds preservation order until investigations are complete or the case is determined
An order of February 5 by the Chief Magistrate, Milimani Law Courts in Nairobi reads, “Now I therefore authorize No. 231754 CI Mike Muia, an investigator with the Directorate of Criminal Investigations, by this warrant, to investigate the said accounts and to require the production for his scrutiny and take certified copies of account opening documents, cheques transacted in the accounts, deposit, withdrawal slips, outward and inward transfer documents transacted from 30 January 2018 and 5th February 2018, Bank statements from 30th January 2018 to 5th February 2018, funds preservation order until investigations are complete or the case is determined by the honourable court.”
The order freezing the accounts in Barclays Bank, NIC Bank, Cooperative Bank, Equity Bank, DTB, KCB, ABC I&M Bank and Consolidated Bank was lifted three days later in response to miscellaneous Criminal Application No. 389 of 2018, which reads thus:
“Whereas it has been proved to me on oath that the investigations were full conducted and the investigating officer finds that there is no valid reasons to continue freezing the accounts. It is now here ordered that the following account to be unfrozen by the above mentioned bank managers.”
In all these, LR. No 7978/4 has, curiously, remained the same although several parcels have been hived off during the transactions.
Attorney General Githu Muigai, in an advisory to the NLC on the same avers,” Under Section 121 of the Land Act, the Commission is required to demand in writing for the surrender of the title documents to the Registrar in the vent that the title documents have not been delivered by the person having possession of the documents of title”.
The Sh1.5 billion paid to the businessman early this year is the latest of the over Sh10 billion made to Mburu by the government in compensation for about 53 acres acquired by the government.
Of interest has been the sudden interest and investigations by two investigating agencies and two parliamentary committees for a transaction that went through a thorough due diligence process by different government institutions before payment was authorized.
Investigations by the Ethics and Anti-Corruption Commission (EACC) started a month after a probe by FRC.
In previous court documents, Mburu, through his Afrison Export & Imports Limited and Huelands Limited, have maintained the government had illegally occupied part of the 97 acres of its lands since 1980 and had proposed to buy the whole land but initially only purchased seven and half acres where the General Service Unit headquarters stands until 2009 when GSU fenced off 30 acres and the Ruaraka Chief’s camp occupied four acres. The two schools have been occupying the land for the last 25 years.
The defunct Nairobi City Council also issued allotment letters to individuals for part of the land claimed by the tycoon.
Negotiations between the Ministry of Education and Afrison Export & Import Limited for compensation of the land began in February 2017 and surveyors from the ministry and the National Land Commission conducted vacation and negotiated for the price before the payment was made.
A report made at the DCI headquarters by the seller reveals that a broker identified as Meshack Onyango who proffered the businessman unspecified services, has claimed Sh81 million in payment.
In a letter he wrote, Onyango also lists a number of people, including politicians, state officers, police, NLC and EACC officials he alleges were involved in pushing for the payment to Mburu in exchange for money.
In his defence, Onyango has provided bundles of documents on the land to the EACC to help in the investigation.
The DCI has obtained a warrant of arrest for Onyango alleging that he is wanted for attempted extortion.
Head of Serious Crime Unit at the DCI John N Kariuki last month placed an advert in the local dailies appealing for information on the whereabouts of Onyango.
In 2015, it was revealed that former President Mwai Kibaki’s son Jimmy Kibaki received Sh100 million from Mburu shortly after he received Sh2.5 billion compensation for the GSU land.
The businessman maintains that he has done nothing wrong because the sale under went due diligence by competent government agencies including parliament before payment was approved.
When the matter came to his desk, Prof Muigai had advised government to follow the constitutionally-stipulated processes in the compulsory acquisition of the land for public installations. (