Why Karen's Sh8 billion land tussle is headed to Supreme Court

A long-running Sh8 billion Karen land dispute heads to the Supreme Court amid competing ownership and succession claims. [File, Standard]

The battle over Sh8 billion land at Karen, pitting Muchanga Investments, a company incorporated by former Vice President Moody Awori, his wife and former President Jomo Kenyatta’s lawyer Francis Da Gama Rose and Telesource.com, Habenga Holdings Limited, Jina Enterprises, John Mugo Kamau, and former Nairobi Provincial Commissioner Joseph Kange’the’s widow Carmelina Ngami, is headed to the Supreme Court.

This comes as a mystery man moved to the Family Court, claiming he was the nephew of Arnold Bradley, the owner of the property.

The Environment Court had ordered the Public Trustee to trace Bradley’s family and surrender the property to them.

Following the orders, Peter Geoffrey filed a case claiming he was an heir to the wealth. Born on April 22, 1944, the 82-year-old British citizen, through his lawyer Osodo Opiyo, alleged he was unaware of the wealth until he was alerted about the judgment.

Nevertheless, the Court of Appeal overturned the judgment in favour of Muchanga, prompting an application to be allowed to move to the Supreme Court.

Bradley’s family, represented by Imogen Poppleton, wants the highest court in the land to settle the question whether an Environment Court has powers to question an executor or trustee’s powers to sell off a property.

At the same time, whether the court’s judgment can be binding on parties who were not previously cited or listed in a case in the initial pleadings.

Poppleton’s lawyer Prof.Githu Muigai said that the issues went beyond the dispute as they touch on succession processes and purchase of properties left behind by deceased persons.

He insisted that the executor’s powers were central to the root of the title at the heart of the case.

“The intended appeal is not merely an attempt to obtain a further review of the evidence or to correct an alleged error in the application of settled law to the facts of the present dispute. The questions proposed for certification concern the proper scope and application of legal principles having implications beyond the parties to this application,” argued Githu.

Poppleton joined the case after the family learnt about the court orders from the media.

She argued that Barclays Bank had neither consent nor authority to sell the property.

However, Court of Appeal Judges Patrick Kiage, Stephen Radido and Rachel Ngetich ruled that the family had come too late in the day, adding that they did not challenge Barclays’ decision to sell the property before the family court. The verdict opens yet another Pandora’s box as it is unknown whether the lender surrendered the money to the beneficiaries or not.

They upheld Muchanga’s argument that the exchanges between Barclays Bank lawyers Kaplan and Stratton and the law firm owned by the senior Da Gama Rose proved that the firm had purchased it.

For a decade, Muchanga battled several persons and companies that claimed 135 acres of prime land worth Sh8 billion. The property is replete with intrigues, as after the lower court judgment, an 82-year-old man called Peter Geoffrey Sell sued the public trustee before the Family Court claiming he is Bradley’s nephew.

Awori testified in court that he incorporated Muchanga Investment on April 18, 1978, but retired as a director when he was appointed Vice President in 2003.

Muchanga sued Telesource.com, Habenga Holdings Limited, Jina Enterprises, John Mugo Kamau, and former Nairobi Provincial Commissioner Joseph Kange’the’s widow Carmelina Ngami.

At the same time, Telesource and Joseph Milimu Konzolo countersued Muchanga over the property originally owned by Arnold Bradley, a white settler.

Muchanga claimed it bought the land from Barclays, allegedly the executor of Bradley’s estate, for Sh 1.25 million. Da Gama Rose, Muchanga’s executive director, claimed negotiations with the bank to purchase the suit property began in 1982, and the property was registered in the firm’s name in 1983.

On the other hand, Telesource, Habenga, Jina, Mugo, and Ngami’s administrator, Joseph Kang’ethe, also claimed ownership.

Kang’ethe claimed that the property belonged to Mburu.  Before she died, Ngami alleged that Kenyatta’s lawyer, Francis, failed to list the property as one of Mburu’s assets when he died.

However, in an interesting twist to the saga, at the Environment Court they all went home with nothing, with the court ordering the property to revert to Bradley’s estate.

Justice Oscar Angote ordered the public trustee to hunt for Bradley’s surviving heirs and bequeath them the land.

Justice Angote declared that the titles obtained by Telesource and Mburu were acquired through fraud.

He also ruled that the titles held by Muchanga, Habenga, Jina Enterprises or any other persons acting under them are null and void.

Justice Angote ordered the Registrar of Titles to revoke all the titles held by the warring parties and barred them from selling, fencing, subdividing, dealing or interfering with the vast land. He also directed that if the Public Trustee did not find any Bradley descendants, then the property must revert to the government as no one owns it.

In the case, Barclays Bank told the court that it never dealt with Telesource or Mugo.

Instead, the lender claimed it oversaw the transfer of the 134-acre land from Bradley to Da Gama Rose.

Barclays director of legal services Waweru Mathenge, in his testimony, said the lender had also held the title of the land as a charge of a loan taken by Mr Rose between 1983 and 1989, when it released a certificate of discharge after he completed servicing it.

He said the property was charged on August 30, 1983, and a certificate of discharge was issued on March 7, 1989, to enable the release of the title deed.

Barclays held that it was the executor of Mr Bradley's will and that it was legally transferred to Mr Rose.

Telesource.com had told the court that it acquired the land from Mugo, who had in turn purchased it from Bradley on August 24, 1978. Bradley died on October 22, 1973.

Mr Mathenge told the court that the transfer between Bradley and Mugo was fraudulent and, as such, the company owned by former NSSF managing trustee Konzolo could not place a claim after Mugo.

Ms Njeri had asked the court to allow her to come in as a party on behalf of Mburu’s widow.

The widow, Ngami, said that she had lodged complaints on mismanagement of Mburu's estate by the public trustees to the anti-graft body, adding that the same body had done investigations on how Mr Muchanga Investments had come to possess the prime property.

In her affidavit, Njeri accused Muchanga of fraudulently acquiring the land.

But the bank disowned the testimony, saying that it was not aware of her.

Njeri was subsequently knocked out of the case and, in her place, Mathenge came in.

However, Justice Angote found that the mother title showed that Mburu was registered as the owner of the suit property on 7th March, 1978. He concluded that the document

At the same time, the judge said there was no evidence to show that Mburu bought the property for Sh1.25 million.

He also held that Mathenge could not represent the estate as there was no evidence to show that the court had granted him the powers to manage Mburu’s wealth.

The judge noted that the dispute is a full-blown drama in the real estate chaos that has bedevilled the country since 1895, when it was declared a British protectorate.

When Bradley died, he had a will dated August 15, 1969. He appointed his widow, Jeanette Sarah Bradley, to be sole executor and trustee of his Kenyan will.

Bradley directed that if Jeanette died before him or failed to take out the will, he appointed Barclays Kenya as the executor and trustee.

The court observed that it was unclear whether Jeanette died or simply had no interest in the wealth or will, as Barclays sought to be granted authority to run the estate in 1974.

In his will, Bradley bequeathed four acres of the prime land to his daughter, Arnette Thereson Benson, together with all the buildings built on it.

Barclays then transferred the same on March 2, 1978.

In addition, Bradley also directed that the trustee dispose of the rest of his Kenyan wealth and the cash be held in trust for the beneficiaries of his estate.

However, Barclays claimed that Brounger died on January 29, 1974, and a year later, on August 26, 1975, Thoman Owen Crundwell wrote to it indicating that he had no interest in Bradley’s wealth.

As a consequence, it argued, after Crundwell rejected the wealth, the same was to be distributed as if Bradley had no will.

It stated that the same was done and that a trust account was established for the benefit of Annette Therese Benson and Imogen Lindsay Poppleton, Bradley’s children.

Nevertheless, Justice Angote said there was no evidence to show that the property was sold to anyone, nor was there a purchaser.

On Mugo, he said, he couldn't have bought the property as he had died five years before Bradley.