Jonathan Moi, a son of former President Daniel arap Moi, has suffered a major setback after he lost a legal battle involving 1,000 acres of public land he sold to the National Social Security Fund 24 years ago.
On May 16, 1994, Ankhan Holdings Limited, a company associated with Jonathan, sold land said to be part of Ngong Forest to NSSF and pocketed Sh70 million.
Last year, the Kenya Forest Service gazetted the 1,000 acres as part of Ngong Forest. Ankhan was then compelled to rush to court to protect the legality of the sale.
But attempts to sanitise the sale failed after judge Kosi Bor of the Environment Court held that the board of trustees of the NSSF is the absolute owner of the land.
The judge further noted that it would be unfair to issue orders that may affect the NSSF as the registered proprietor without affording it an opportunity to be heard. NSSF isn't a party to the suit in court.
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In its decision the court held: "The court has looked at the copy of the certificate of title in respect of I.R. No. 61850 for L.R. No. 18486 and notes that, although this land was first registered in the Petitioner’s name, the land was transferred to the Board of Trustees National Social Security Fund for Ksh70 million on 16/5/1994. Under Section 23 of the Registration of Titles Act (now repealed), the court had to take as conclusive evidence the certificate of title which in this case shows that the Board of Trustees National Social Security Fund is the proprietor of this piece of land and is therefore the absolute and indefeasible owner of the suit land, subject to challenge on grounds of fraud or misrepresentation to which the registered proprietor is proved to be a party."
The judgment arose out of a case filed by Ankhan Holdings challenging the decision by Kenya Forest Service to gazette the land as part of Ngong Forest in 2016.
Ankhan, a company on whose behalf Moi signed a copy of application for allotment in 1992, is the original owner of the land in question.
The company says it applied to the Commissioner of Lands in March 1993 for allotment of the land situated along Ngong Road adjacent to Ngong Forest.
On April 13, 1993, the Commissioner of Lands wrote to the Ministry of Environment and Natural Resources inquiring whether the land formed part of the gazetted forest, given its proximity to Ngong Forest.
On March 21, 1993, the Director of Forestry informed the commissioner the department had surrendered the land requested with immediate effect.
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On the basis of the letter, the Commissioner of Lands offered Ankhan allotment of the land delineated in deed plan number 100265/56A for a term of 99 years as from June 1,1993 through a letter of allotment dated May 28, 1993.
The company paid the stand premium of Sh3,080,000 and annual rent of Sh616,000 on March 8,1994.
On March 9,1994, the Minister for Environment and Natural Resources wrote to the Commissioner of Lands stating that he was in process of degazetting the land from gazetted forest land.
To confirm the degazettment, the Commissioner of Lands attached a copy of a signed Gazette Notice dated March 8, 1994.
Following the signed gazette notice, a certificate of title was issued to Moi by the Commissioner of Lands on March 10,1994 in respect to grant number I.R 61850 for LR No 18486, Ngong Road.
Ankhan in a letter of November 10, 2016 informed KFS that it wished to fence the property.
It argued that the move was a courtesy notification even though KFS had no right or interest in the property.
However, KFS in a letter dated November 28, 2016 said the property formed part of Ngong Forest.
Ankhan however said that the claim "is blatant attempt" by KFS to acquire their property in contravention of Article 40 of the Constitution.
The National Land Commission joined the proceedings as an interested party with its principal land officer Zachary Ndege swearing an affidavit.
Ndege confirmed that there was correspondence between the Commissioner of Lands and Environment Ministry prior to allotment.
Ankhan got the title deed March 10, 1994, a day after the minister wrote to the Commissioner of Lands.
KFS corporation secretary Esther Keige said NSSF had also written to the Chief Conservator of Forests claiming ownership of the property February16, 2004.
Keige said the suit property featured in the report of the commission of inquiry into illegal and irregular allocation of public land presented to former President Mwai Kibaki.
She told the court that the procedure for degazettement of forest land was well entrenched in law and a gazette notice cannot pass a title to any entity.
The Ngong Road Forest is divided into two main sectors by Ngong Road: the Miotoni section to the northwest, and the Racecourse and Kibera section to the southeast.
The southern bypass, in turn divides these sections.
The forest was originally gazetted in 1932 and covered an area of approximately 2,926.6 hectares, supplying the Kenya Railways with timber and fuel.
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By 1978, this area had been reduced after a series of legal excisions. Grabbing was rife, with portions of the forest hived off and allocated to private developers behind closed doors.
In the early 1990s, the Trustees of Ngong Road Forest Sanctuary discovered that the core of the indigenous forest had been divided into 35 land parcels and was to be given over to developers.
After intense lobbying of the government, the sale was cancelled.
By 2005, the total area of the Ngong Road Forest had reached its current size of 1,224 hectares.
Kenya Reinsurance Corporation may soon part with its parcel of land located in the forest.
The oldest re-insurer claims it bought the parcel worth Sh345 million and that its title is free of any issues.
Kenya Re MD Jadiah Mwarania told the Star that the purchase of the parcel had been given a nod by the board.
"The purchase was approved by the board on 11 April 1996”, Mwarania said.
However, a KFS official who requested anonymity said it is a matter of time before the land is repossessed as it has never been degazetted.