Kings Business Park In Nairobi Sits On Public Land, Court Nullifies The Landlord’s Deed

Acquisition of the land where the multibillion-shilling Kings Business Park sits in Nairobi’s Industrial Area was fraudulent, a court has ruled.

Lady Justice Loice Komingo of the Environment and Land Court ordered title for the land be revoked and a new one issued to the genuine owner, Horticultural Crop Directorate (HCD).

Former President Daniel arap Moi’s son Jonathan and businessman Jacob Juma (both now deceased) were associated with the land.

Judge Komingoi’s ruling that the Land Registrar cancels the title and issue HCD with a new one, was premised on three basic facts of law.

First was that though every person has a right to acquire and own property in any part of Kenya, the rights under Article 40 of the Constitution do not extend to any property that is found to have been unlawfully acquired.

While ruling out compensation, the Court noted that in a situation where the mode of acquisition of the land is suspicious and cannot be defended, allowing payment of damages would amount to condoning an illegality.

“In a situation where the mode of acquisition of the said property is suspicious and cannot be defended, allowing payment of damages will be tantamount to condoning illegality, a task a court of law cannot be party to,” the court ruled.

Komingoi stated that a title deed is an end product, and if ownership is contested, the holder of the title cannot dangle it as an absolute or indefensible proof of ownership.

She observed that one had to go further and prove the legality of how the land was acquired so as to entitle him to the land.

The court noted that HCD proved its case “on a balance of probabilities as against the defendants” and that the grant for land parcel LR NO. 209/12490 issued to the other party was fraudulent, null and void.

Currently the land is valued at Sh400 million and has 28 godowns of approximately 10,200 square feet each.

HCD, which was formerly known as Horticultural Crops Development Authority (HCDA), had initiated the process of reclaiming the land which was initially sold to Sakir Properties by businessman Jacob Juma, who was shot dead in Nairobi in May 2016.

Repossessing land In a letter dated March 10, HCD’s head of legal services Andrew Osodo confirmed that the authority had initiated the process of repossessing the parcel of land.

“The purpose of this memo is therefore to forward the judgement for your record and most importantly to note that the court has reverted back the suit land to the authority,” Osodo wrote.

Acquisition of the land was investigated by the National Land Commission (NLC) which recommended the revocation of the title, indicating that the piece of land, L.R number 209/12490, was allocated to HCD.

HCD was to build their headquarters there.

The matter went to court after Sakir Properties, through their lawyers, S.S Jowhal and Company Advocates, maintained that they did a search on July 10, 2007 under reference 444/2007 and another one on October 13 under reference 805/10/09.

Both searches, they claimed, did not show that the land belonged to the HCDA. They further claimed that the plans for the development of Kings Business Park were duly approved by the Nairobi City Council, now the County Government of Nairobi.

Juma had told detectives that he bought the company that bought the land from Jonathan Toroitich Moi who was the original owner. Toroitich died in April 2019.

“After I bought the company and they transferred the shares. The land had two letters of allotment, one for Sakir Properties and the other for the HCDA. HCDA could not raise the 1.

7 million for the land rates,” Juma wrote, adding that he later, in 2009, sold the land to Double Ess.

The Court however ruled that HCD’s evidence had not been controverted. “I find the first defendants (Sakir Properties) defence amounts to a mere denial. It claims to be a purchaser for value having bought from the allottees in January 1999.”

According to records, the matter was also referred to the Public Investments Committee (PIC) and the HCDA was instructed to pursue the recovery of the land.

During initial investigations, the NLC wrote to the Registrar of Companies requiring information about the Kings Collection but the Registrar said that the company was not registered.

“The above business name/company does not appear in our database of registered businesses/companies,” the letter dated April 21, 2015 stated.

The probe revealed that according to the card at the Ministry of Lands, the land belonged to Double Ess since January 1, 1998.

However, NLC noted that the card had been swapped since it was valid from January 1, 1998 “while the government had held the land as per the allotment since 1987.”

“It is a fact that government land was stolen after the government had paid fees on it and is currently under private hands who stole it knowing clearly that it belongs to the public,” the NLC reports stated.

An affidavit dated February 28, 2008 and sworn by the HCDA Internal Auditor Isaac Chemwon Meto states that the authority was allocated the 3.5Ha property in January 1987. HCD paid Sh152,608 stamp duty and a receipt -number B290939 -was issued.

Waiver of accumulated rent However, it was established that while the communication between HCDA and the Commissioner of Lands was going on regarding the waiver of accumulated rent, Sakir Properties was allotted the land and issued with a title deed. HCDA immediately cautioned the property.

Investigations however later revealed that Sakir Properties illegally acquired the documents for the land during registration. Interestingly, the grant presented by Sakir Properties was prepared and signed on May 27, 1998 the same day the grant for the HCDA was prepared. It even offered to sell the land to HCDA.

The grant had a deed plan number 193909, which was used to prepare a fraudulent grant to Sakir Properties. “No other documents were presented by Sakir Properties to show that they had a different Deed Plan. The suit property was therefore not available for allocation to Sakir Properties,” the Court stated.

It later fraudulently registered the same parcel in its name, conspired and purported to sell it to Double Ess Properties Ltd during the pendency of civil suit, the probe further revealed.

LABYRINTH OF OWNERS 

• The land was initially sold to Sakir Properties by businessman Jacob Juma.

• Jacob Juma told detectives that he bought the company that bought the land from Jonathan Toroitich Moi who was the original owner.

• An NLC probe concluded that the property was fraudulently obtained since HCDA did not surrender the land, and that the Commissioner of Lands did not give any notice of revocation.