Top government officials and the National Lands Commission ignored a court order to pay the initial Sh1.5 billion compensation for the controversial Ruaraka land, it has emerged.
Last month, the National Assembly Lands Committee which investigated the matter concluded that the process of acquiring the parcel of land was fraudulent and bordered on collusion by top Ministry of Education, Treasury and NLC officials to swindle taxpayers.
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Details have emerged of how, despite a High Court order barring the State from making any payments, the officials still went ahead to carry out the controversial Sh3.2 billion Ruaraka land transaction.
On December 13, 2016, Justice Okong’o issued orders barring the State from making any payments to Afrison Export Import Limited and Huelands Limited owned by Francis Mburu, Mark Mburu and Justin Mburu for acquisition of seven acres.
Activist Okiya Omtatah had filed a petition on November 28,
2016, objecting to what he termed as “unjust enrichment by Afrison Import Export and Huelands Limited from numerous fraudulent payments made by the State for multiple acquisitions of LR No. 7879/4.”
After hearing all the parties to the suit, the Court barred any transactions on the entire 96-acre piece of land.
“That with a view to preserve the subject matter of the suit, the 3rd, 4th, 5th and 6th respondents are prohibited from making further payments to the 1st and 2nd respondents directly or through their agent Almasi Limited in respect of compensation on the LR No. 7879/4 pending the hearing of the application dated 28 the November 2016 inter parties,” the judge ruled.
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The 3rd, 4th, 5th and 6th respondents are the Kenya Urban Roads Authority, National Land Commission, CS for Lands and the Attorney General, respectively.
Subsequent petitions by Afrison and Huelands to vary the orders were rejected by Justice Samson Okong’o whom the companies accused of bias. He recused himself from the case, which was placed before Justice Eboso Mweresa, but the orders remained in force. The case has never been heard in substance to date and the NLC, which had also sought to set aside the order, withdrew its application after Afrison’s petition failed.
Despite the court order barring any transaction, the NLC went ahead to process the payments of Sh1.5 billion to Mburu’s firm, Whispering Palm Estate Ltd.
The money — part of the Sh3.2 billion — was paid on January 29, 2018, over a year after the court order was issued.
On April 13, 2018, Omtata, in whose favour the orders were issued, returned to court and filed for contempt against NLC chairman Muhammad Swazuri, then Education CS Fred Matiang’i and PS Belio Kipsang for illegally paying Sh1.5 billion as compensation.
Omtatah also wants commissioners Tom Konyimbih and Emma Njogu of the NLC charged with contempt for approving the payments; the director and deputy director of valuation and tax, Salome Munubi and Joash Oindo respectively for authorizing transfer of funds; and the directors of Huelands for accepting the payment.
The government officials have not yet responded to the suit whose hearing has been pushed to October.
The Star is in possession of the trail of confidential correspondence between top Education ministry officials and NLC officials revealing how the Lands Commission ended up paying for the land despite the court order.
It shows how the Education ministry initiated the process of payment in February 2017 and culminated in the NLC’s payment of Sh1.5 billion almost a year later on January 29 this year.
In one of the letters, Swazuri, who is under investigation over the transaction, reminds Kipsang of a crucial section of the law that empowers only the CS — not the PS — to authorise acquisition of land.
“Please note that Section 107[1] of the Land Act prescribes that whenever the National Government is satisfied that it may be necessary to acquire some particular land, the respective Cabinet Secretary shall submit a request for acquisition of public land to the Commission to acquire land on its behalf,” Swazuiri wrote to Belio.
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The PS had earlier irregularly written to the Commission submitting a request for the acquisition of the controversial land.
“Kindly make your Cabinet Secretary aware of this requirement so that we proceed with the intended acquisition,” advised Swazuri, an associate professor of land economics. The letter was also copied to the commission’s director of valuation and taxation.
Following up on Swazuri’s advice, Matiang’i formally wrote to the commission on March 17, 2017, requesting it to commence the process of acquiring the land.
Matiang’i cites the need for the two schools to obtain title deeds for the land they ‘currently occupy’ as the main reason that necessitated the ministry’s request.
“As per the provisions of section 107[1] of the Land Act, the ministry of education has determined that it is necessary to acquire all that piece of land on which the two respective institutions named above are situated,” wrote Matiang’i in a letter also copied to his then PS Belio.
He went on, “I therefore formally request the National Land Commission to commence the process leading to the acquisition of the said private land.”
The minister told NLC that the procedure for the acquisition of the land was within their mandate,“and I will urge that you address yourself to this matter as soon as practicable to enable the two public institutions to acquire title deeds to the land they currently occupy.”
In his application, Omtatah wants the officials committed to jail and the money, which was paid out refunded. He says their attempts to vacate the orders had failed, hence, their decision to disobey them was an act of impunity.
Omtatah’s orders covered the entire 96 acres of the controversial land, a portion of which (13.5 acres) is occupied by the Ruaraka and Drive Inn schools.
DPP Noordin Haji last week indicated he had received the file of the investigations from the Ethics and Anti-Corruption Commission and was studying it. He directed the Directorate of Criminal Investigations to withdraw charges against Meshack Onyango Dehay, an estranged associate of the claimants to the Ruaraka land, who sent a damning dossier to Parliament and the EACC allegedly explaining the intricate web of intrigues behind the land transactions.
The EACC has reportedly adopted him as a State witness to in a bid to unravel the riddle.
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