PART ONE:
MY PERSONAL STATEMENT ON WHY THE EACC DIRECTOR OF INVESTIGATIONS, MR. ABDI A. MOHAMUD, IS FIGHTING ME OVER MY STAND AGAINST LAND GRABBING IN NAIROBI
Fellow Kenyans, a lot has been said lately regarding my frequent run-ins with the Ethics and Anti-Corruption Commission (EACC). As I have stated countless times before, I have never had any qualms at all with any investigations against me as a state officer. However, I would generally have a problem with individuals misusing public offices to cover-up for their crimes, while at the same time using intimidation, witch-hunt and arm-twisting tactics against those genuinely committed to fighting corruption and impunity in Kenya.
Below are TWO very important narratives that serve as proof that, indeed, corruption and impunity fights back, often times from the least likely of quarters. What worries me most is when the Constitutional Institution tasked with fighting corruption perpetuates the same vice with impunity.
CASE No.1: THE ILLEGAL SALE OF PUBLIC LAND IN SOUTH C WITH THE HELP OF THE EACC DIRECTOR OF INVESTIGATIONS
In May 2014, one JOHNSON NYAGA KIBIRA (a former Nairobi County employee) attempted to build a Boundary Wall and a Gatehouse on Land Reference Number NAIROBI/BLOCK 103/793 in Mugoya Estate on Muhoho Road, South C which is a public utility plot earmarked for ECDE Centre/Playground for children in Mugoya Estate. When Mugoya Estate Residents reached out to me then as the Senator of Nairobi County, and we confronted the land grabber, we found that he purported to have a title for the land issued by County Council of Nairobi on 20th September 2012 although the land had been a playground for children since the estate was built.
On 27th May, 2014, we agreed with the residents that they report the matter to EACC and in a letter on the same date, Catherine Njiru of P.O. Box 59041-00200 Nairobi wrote on behalf of the Estate Residents to EACC requesting for investigations into allegations of suspected fraudulent/irregular acquisition of the public land Plot Number NAIROBI/BLOCK 103/793 in South C. Evidence shows that the allegations of grabbing of that land were true and merited investigations as a matter of urgency.
On 16th July, 2014, EACC Director of Investigations Abdi A. Mohamud responded to Catherine Njiru vide letter Ref. No. EACC. 6/16/1 Vol, XXVIII (69)-46286 noting receipt of the letter dated 27th May 2014. The letter acknowledged the allegations of suspected fraudulent/irregular acquisition of public land and promised to take the necessary steps to verify the same to inform action, as need be. Interestingly, the Director of Investigations also advised the Complainant that she “may seek further intervention from the National Land Commission” even though she had indicated it as a public land.
However, despite the undertaking, Abdi A. Mohamud as EACC Director of Investigations refused to investigate the complaint of Catherine Njiru at all, contrary to section 25 of the Anti-corruption and Economic Crimes Act, 2003 which makes it mandatory for EACC to investigate every complaint unless it dismisses the same in writing. It took another report to EACC 4 years later on 23rd July 2018 for the Commission to launch inquiry into the grabbing of the subject plot.
According to the intelligence I have, instead of investigating the complaint upon receipt, the EACC Director of Investigations Abdi A. Mohamud immediately used the information obtained from the whistle blower on the grabbing of the public land in South to appropriate the land for himself and his personal friend Isaack Abdullahi Ibrahim and the same plot had been transferred to him by 11th December 2014.
On 15th September, 2014 (2 months after the Abdi A. Mohamud letter to the whistleblower Catherine Njiru), sale of land agreement Reference Number M/035/2014 drawn by J.K. MWANGI & CO. ADVOCATES of Avenue Office Suites, 3rd Floor, P.O. Box 9301-00300 Nairobi was executed between JOHNSON NYAGA KIBIRA (ID. NO 3727396) and ISSACK ABDULLAHI IBRAHIM (ID NO. 1195102) for sale of the South C Plot measuring 0.218 Hectares (0.521 acre) at a throw away price of Ksh. 42,500,000.
On 4th November, 2014, the Advocates for ISSACK ABDULLAHI IBRAHIM (the purported purchaser) ISEME, KAMAU & MAEMA ADVOCATES as listed on the sale agreement (clause 3) sent at 15:30 send Ksh.38,250,000 from I & M Bank Account No. 00100076871201 (Transaction Ref. No. 9990RTGS4033614) to then FINA BANK Account No. 1111800331 (Kimathi Street Branch) in the name of J.K. MWANGI ADVOCATES. The firm of J.K. MWANGI ADVOCATES is listed in the Sale Agreement as Advocates for JOHNSON NYAGA KIBIRA with the proprietor James Karanja Mwangi Advocate No. P.105/3042/96 (aka J.K. MWANGI) witnessing and certifying the signature of the vendor on the agreement as being known to him.
On 17th November 2014, the said JOHNSON NYAGA KIBIRA signed a transfer of lease witnessed by the same J.K. Mwangi Advocate who witnessed his signature and certified his photo, ID No. 3727396 and PIN NO. A003944002Y as true copies of the original. He also certified that the said JOHNSON NYAGA KIBIRA appeared before him on the same date 17th November 2014 and signed the transfer. The transfer is drawn by the Purchaser’s advocate ISEME, KAMAU & MAEMA ADVOCATES under reference number IBR-001-0009-12 and the ID. No. 11951012 and PIN. NO. A003023556J are certified by Emma Irene Gathoni Wacira Advocate P.105/5947/05 of P.O. Box 11866-00400, Nairobi.
On 11th December, 2014, the transfer was purportedly registered and certificate of lease for NAIROBI/BLOCK 103/793 was issued to Issack Abdullahi Ibrahim of P.O. Box 1953-00100 Nairobi.
On 23rd December, 2014, J.K. Mwangi Advocates vide Reference Number 001RTOU143570033 from the law firm’s account at Chase Bank Account No. 0012000103001 in the name J.K. MWANGI AND CO. ADVOCATES TRUST A/C transferred by via RTGs Ksh. 10, 350,000.00 to then and current Nairobi City County Chief Officer Lands, STEPHEN GATHUITA MWANGI First Community Bank Ltd Account No. 107871 at 2:36PM. The same Advocates from the same account on the same day 23rd December 2014 transferred to Ksh. 1,850,000.00 to the purported vendor of the Land NAIROBI/BLOCK 103/793 JOHNSON NYAGA KIBIRA vide transaction Reference Number 005TROU143570051.
On 12th September 2012 when the public land NAIROBI/BLOCK 103/793 was purportedly transferred to JOHNSON NYAGA KIBIRA, Stephen Gathuita Mwangi (alias SG MWANGI) was at the time the Deputy Director, Land and Engineering Survey (2008-2013) and before then he was the Assistant Director Land Survey (2004-2008), Principal Land Surveyor (1989-2004) and Senior Surveyor (1985-1989). Prior to that, SG Mwangi was a Staff Surveyor at Ministry of Works, Housing & Physical Planning (1982-1985).
Indeed, it is also around this time when SG MWANGI was Staff Surveyor at the Ministry of Works, Housing & Physical Planning that the survey and issuance of lease for Block 103 for Mugoya Estate, where the grabbed land is situated, was done and leaving that land unallocated as a public utility plot for ECDE Centre and Playground for children. In a sworn affidavit dated 4th October 2019 filed in ELC Case No. 158 of 2019, Margaret Wambeti, one of the investigators of EACC appointed to investigate the case states in Paragraph 25 thereof: “Notably, Nairobi Block 103 (the grabbed land is NAIROBI/BLOCK 103/793) was created from the years 1980 with all its leases issued by the National Government being the Head Lessor running from 1984, 1986 & 1993. The lease to the suit property is for the year 1978 with the head lessor purportedly being the defunct Nairobi City Council.”
Further, in Paragraph 26 of the same Affidavit drawn and filed on behalf of EACC in court by Clare Cherono Lai Advocate (the EACC In-house Advocate handling the case ELC No. 158 of 2019), Ms Margaret Wambeti proceeds to state:“THAT investigations so far conducted by the 2nd Respondent (EACC) reveal that the suit property (Land Reference Number NAIROBI/BLOCK 103/793), a public property, was illegally and fraudulently alienated through an intricate corrupt and fraudulent scheme involving public officials and private citizens.”
The information that STEPHEN GATHUITA MWANGI, being Nairobi County Chief Officer, Lands on 23rd December 2014 received Ksh. 10,350,000 from J.K. MWANGI & CO. ADVOCATES for giving consent for the transfer of the public land by one Land Grabber JOHNSON NYAGA KIBIRA to another land grabber ISSACK ABDULLAHI IBRAHIM, has been known by EACC Director of Investigations Abdi A. Mahamud and his EACC Investigating Officers working under him all along since last year but they have done nothing to recover the public land.
On 13thMarch, 2018, the same JOSEPH NYAGA KIBIRA (even though he had purportedly sold and transferred the land to ISAACK ABDULAHI IBRAHIM 4 years earlier) applied to the Nairobi County for building plans approval under REF. NO CPD/DC/L.R. BLK/103/793/MNI and paid Ksh. 1,830,200.00 vide Receipt Number 180313009653645 (for Invoice Number INV-22393) in the name of Johnson Nyaga Kibira.
On 29th March, 2018, even though the Urban Planning Department is the one that had earmarked the land in question NAIROBI/BLOCK 103/793 as public utility land for use for ECDE Centre and Children Playground during approval of the Mugoya Estate plans, and the land had always been used as a children’s playground, the Director of the Urban Planning Department purported to approve the plan, Reg. No. CPF AP 040, for proposed shops, offices and 28 No. (two bedroom apartments) 8 levels to be erected on NAIROBI/BLOCK 103/793.
On 23rd July, 2018, a complaint was made on behalf of Mugoya Residents to EACC, after which they launched investigations into the allegations of illegal and/or fraudulent acquisition and disposal of public the property Nairobi/Block 103/793.
Since July 2014 when Director of Investigations Abdi A. Mahumud replied to Catherine Njiru’s complaint made on 27th May, 2014, EACC had not opened an inquiry file. It is not until 2018, after the second complaint was made, that investigations were commenced vide Inquiry File EACC/AT/INQ/26/2018, to establish the veracity of the allegations on the illegal or fraudulent acquisition of the land NAIROBI/BLOCK/103/793.
From 28th August 2018, EACC commenced preliminary investigations and sought information from relevant/responsible institutions including, among others: The Director of Physical Planning, The Secretary of Lands, the Chief Land Registrar, the Director of Surveys, the Director General NEMA and the County Secretary, Nairobi City County all of whom confirmed the land is public utility.
On 15th October 2018, EACC Deputy Director, Humphrey Mahiva wrote to the Nairobi City County Secretary vide letter Reference Number EACC. 6/16/1 Vol LXVI (39), requesting S.G. Mwangi, the Chief Officer Lands to go to Integrity Centre Offices on Thursday 18th October, 2018 at 10:00AM for an interview and statement recording to assist with investigations in respect of Land Reference Number: Nairobi/Block 103/793, assisted by EACC Officers Margaret Wambeti and Justus Wangia.
On 14th November, 2018, Nairobi County Chief Officer-Urban Planning Justus Mwendwa Kathenge wrote to Humprey Mahiva, Deputy Director, Investigations at EACC Reference No. UP/PCE/00225 in reference to EACC Letter Reference No. EACC.6/16/1 Vol LXVI (40) confirming that the land is public utility land. The next day, on 15th November 2015, Humphrey Mahiva of EACC launched a Restriction on Nairobi/Block 103/793 to Chief Land Registrar vide letter Reference No. EACC.6/16/1 Vol LXVI(101) “Pursuant to Section 76(1)(2)(b) of the Land Registration Act, 2012…for restriction on dealings (transfer, sale or other dealings) related to the above parcels of land until the allegations are verified.”
On 10th April, 2019, EACC through Humphrey Mahiva wrote to the Nairobi City County Secretary Letter Reference ACC.6/16/1 Vol. LXVIII (101) titled RE: REQUEST TO STOP DEVELOPMENT ON L.R. NAIROBI/BLOCK 103/793. In the letter, EACC stated: “Our preliminary findings reveal that the parcel of land was irregularly acquired. In the course of our investigation we established that the proprietor has an ongoing construction on the subject land. This is therefore, to kindly but urgently request you to stop the ongoing construction until the investigations are completed.”
On 17th April 2019, as Nairobi County we complied with the request of EACC and wrote to JOHNSON NYAGA KIBIRA vide Letter Reference Number NCC/UP/DC/L/0098/TDA/jnm canceling building plan Reg. No. CPF-AF363 and CPF-AP040 on Plot No. NAIROBI BLOCK 103/793, Muhoho Road, South C.
On 6th May 6th 2019, an Internal Memo from T.D. Adanje, Assistant Director Development Control to Chief Officer, Urban Planning Ref. Number NCC/UP/DC/M/0107/TDA/jnm confirmed that the approval had been cancelled by the Technical Committee.
On 15th May, 2019 ISSACK ABDULLAHI IBRAHIM filed a case ELC 158 of 2019 against Nairobi City County, EACC and JOHNSON NYAGA KIBIRA which sought various orders including the lifting of the Restriction Order (but had not enjoined Chief Registrar). However, there was no prayer for orders to continue construction or for reinstatement of the cancelled building approvals.
On 24th May, 2019, EACC appointed Claire Cherono Lai (P105/9011/12), who is an in-house Counsel for EACC, as their Advocate in the matter. There is no record of Nairobi City County instructing any advocate, and the advocate on record for the County was sourced by the land grabber with help of his friend Nairobi County MCA Abdi Guyo behind the County Executive’s back. Further, there is no evidence of authority from the Accounting Officer of County Executive, namely the County Secretary or the County Attorney, to enter any consent in any application in the matter whatsoever.
Nevertheless, on 27th May, 2019, the lawyers chosen by EACC Director of Investigations Abdi A. Mahamud (for EACC Clare Lai Advocate), Matopeni MCA Abdi Guyo (for Nairobi City County Musyoki Mogaka & Co Advocates who had not yet been appointed by the County or given instructions to consent) and the Land Grabber Issack Abdullahi Ibrahim (Cohen Amenya for Ahmednassir, Abdikadir & Co. Advocates), conspired to enter consent in favour of the land grabber
The Consent Order recorded before Hon Justice B.M. Eboso “THAT pending hearing and determination of the suit, the applicant herein be allowed to continue with development and construction without any interference from any party on L.R. NO. 103/793. THAT the 2nd Respondent is allowed to continue undertaking investigations.” In truth, EACC does not need permission of the Court to continue or discontinue investigations and the consent by EACC allowing the Land Grabber to continue with the construction, coming in a matter of days after the Commission wrote to Nairobi County to cancel the consent, was strange.
It is at this point when the land grabber resumed construction that residents of South C approached me as the Governor of Nairobi to intervene on the matter. I found the consent strange, as I had never heard anywhere else EACC consenting with a land grabber to continue construction. The consent orders also did not make sense as the public land cannot continue to be available for original use, namely, ECDE Centre and Playground, once a mall is built on it as ordered by consent. I could also not understand why the CEO of EACC had not engaged me on the matter to reach an agreement as he had done before in other matters where we had successfully collaborated in recovering public land stolen by land grabbers.
Further, I read mischief in this matter especially after I learned that the residents through their Estate Administrative Manager Catherine Njiru had written to EACC and Abdi A. Mahamud responded to them promising investigations but sat on the file for the whole time the land grabber in question Isaack Abdullahi Ibrahim was purchasing the land from the original land grabber JOHNSON NYAGA KIBIRA.
I also found it strange that almost a year after the complaint was made, EACC Department of Investigations had not yet summoned or recorded a statement or even informed the Land Grabber whose name was on the title of land NAIROBI/BLOCK 103/973 and who was the beneficiary of the consent ISSACK ABDULLAHI IBRAHIM, despite being adversely mentioned in the complaint dated 23rd July 2018. As a result, I refused to comply with the order allowing the land grabber to continue with development and construction and that is where my problem with the EACC Cartel, led by Abdi A. Mahamud, started in earnest.
On 10th June, 2019, the lawyer for the land grabber Cohen Amanya Advocate wrote to Musyoki Mogaka & Co. Advocates vide letter Reference No. AAC/5822/2013 stating “The above matter refers and our letter dated 27th May 2019. We bring to your attention your clients refusal to reinstate the plans as per the court order which had directed that our client continue with construction without interference. Kindly but urgently let’s resolve the issue to enable the contractor proceed with the construction and development. My client keeps incurring losses and failure to which I will seek the courts intervention.”
I refused to recognize the consent order as the Governor of Nairobi City County. This forced the lawyer for the Land Grabber to go back to court vide Notice of Motion dated 5th July, 2019 before Justice B.M. Eboso again and strangely, the EACC In-House Advocate Clare Lai, Nairobi City County Advocate Musyoki Mogaka & Co. Advocate (without any written instructions) and the lawyer for the land grabber Cohen Amenya purported to enter another consent on 30th July 2019.
Specifically, on 30th July 2019, it was again ordered by consent of EACC in favour of the land grabber for NAIROBI/BLOCK 103/793 ISSACK ABDULLAHI IBRAHIM “THAT an order is hereby issued directed towards the first respondent, its agents or employees to reinstate the approvals and building plans Reg. NO. CPF-AF363 and CPF-AP040 on the property known as Land Reference No. 103/793, South C or any part thereof.” I refused to recognize or enforce the same because I could not and still cannot understand how EACC can enter consent with a land grabber to continue construction even after writing to the county stating that, “Our preliminary findings reveal that the parcel of land was irregularly acquired.”
On that same day, 30th July, 2019, I was summoned by EACC to purportedly go and record a statement on 1st August 2019 concerning public utterances made against Hon. Esther Muthoni Passaris. To illustrate that the summons was an afterthought, the letter reference No. EACC.7/10/11 Vol. XXXI (44) purported that I made the statements on “1st May 2019” which was on “Madaraka Day” when in truth I had not spoken about Esther Passaris on Labour Day, which was held in Uhuru Park, but had made the alleged statements on 1st June 2019 during Madaraka Day at Pangani.
On 31st July, 2019, the Advocate for the Land grabber, armed with the second consent given by EACC was on to the next challenge, namely, to get rid of the restriction imposed by EACC (possibly through another consent). Cohen Amanya Advocate vide letter Ref. AAC/5822/2019 wrote to the Chief Land Registrar and copied EACC stating in bold “We act for Mr. Isaack Abdullahi Ibrahim who is the registered owner of the said property NAIROBI/BLOCK 103/793. It is our instructions that the said restriction should be removed as our client is registered owner of the said property.”
Further, the land grabber’s advocate added “We wish to also inform that by consent of the parties in ELC No. 158/2019, Issack Abdullahi Ibrahim vs Nairobi County Government and EACC, our client was allowed to continue with the development and construction without any interference from any party on the said property and the approvals and building plans have now been reinstated (we attach the said order). Your cooperation in having the same removed will be highly appreciated.”
On 2nd September, 2019, the Director of Investigations EACC Abdi A. Mohamud (instead of Humphrey Mahiya who had previously written the letter for restriction) responded to the letter vide Reference Number EAC. 6/16/1 Vol LXXI(5), stating as follows and addressed to Mr. Cohen Amanya, Advocate for the Land Grabber: “Please note that the restriction placed on the subject parcel is in tandem with the Court’s direction and orders given on 27th May 2019 on maintenance of status quo. The court did not issue any orders to lift the restriction. The Commission’s investigations have not interfered with any development or construction being undertaken by your Client.” This letter was received on 3rd September 2019.
On the same day, 2nd September, 2019 Abdi A. Mahamud summoned me again to record another statement due to his hard stance on the case and for fear he will stand on the way for the removal of the restriction on NAIROBI/BLOCK 103/793 which is needed in order for the Land Grabber to access the Ksh. 415,000,000 loan facility from DTB Bank. The amazing thing is that the same Abdi A. Mohamud is yet to summon JOHNSON NYAGA KIBIRA more than 4 years since he received and shelved the complaint of Catherine Njiru on the fraudulent allocation of NAIROBI BLOCK 103/793. Abdi A. Mohamud is also yet to summon or record a statement from ISSACK ABDULLAHI IBRAHIM who purportedly bought the property after he received a complaint on to investigate.
While all this was happening, EACC was busy consenting with the two land grabbers despite overwhelming evidence that the land was public land, even as Abdi A. Mohamud was busy using his officers to intimidate Governor Sonko for standing against and threatening to expose the consent orders granted in cahoots with EACC to the land grabber.
CONCLUSION
Given the foregoing, I wish to make my personal appeal to the Director of Criminal Investigations (DCI) Mr. George Kinoti and the Director of Public Prosecutions (DPP) Mr. Noordin Haji, to immediately institute investigations into the conduct of the EACC Director of Investigations, Mr. Abdi A. Mohamud, in clear cases of abuse of office in contravention of Chapter 6 of the Constitution of Kenya, the Anti-corruption and Economic Crimes Act (2003), the Leadership and Integrity Act 2012, and all related legislation.
Now I can understand President Uhuru Kenyatta’s frustration with the EACC particularly on his war against corruption, because, how is it possible to expect impartial investigations, when the EACC Director of Investigations himself is mired in activities that negate the mandate of his office? When he abuses his office to settle personal scores or intimidate those who find him unfit to remain in a public office?
On Tuesday, 5th November 2019, I will honour the summons by EACC, even though I am scheduled to be interviewed by same EACC Officers who recorded my statement last time. However, I will be the one to decide where my statement will be recorded within the Integrity Centre, for I know what they are capable of. For the reasons and the manifest coincidences above, I believe I am justified in lacking faith in some of the elements within the EACC Investigations Department led by Director Abdi A. Mohamud.
Fellow Kenyans, BE THE JUDGE! In the meantime, the CARTELS MUST FALL!!!
NB: For copies of all the documents mentioned in this statement, visit my Official Facebook page: https://web.facebook.com/GovernorMikeSonkoMbuvi
H.E. MIKE MBUVI SONKO, EGH
Governor, Nairobi City County
PART TWO LOADING……: ON INTERGRITTY HOUSE CORRUPTION WHERE STATE LOST 1.5B.
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