Former Kiambu Governor William Kabogo has failed in an attempt to stop payment of Sh100 million in damages to a Nairobi businessman.
The dispute involves Westlands parcel, which was originally adjacent to another before the two were consolidated.
A lower court had directed Kabogo to compensate the businessman for trespass on his land. But Kabogo, through Caroget Investments Limited, appealed against the decision. He argued that the award was made without any basis and the trespass claim was time-barred and could not be maintained as the firm had a title in its name over the property and was entitled to occupy it.
Dismissing the appeal, the appellate court said Environment and Land Court Judge Elijah Obaga did not misdirect himself. Judges William Ouko, Fatuma Sichale and S. ole Kantai said Justice Obaga considered several factors, including Kabogo’s own valuation of the suit property, which was estimated at Sh1.8 billion.
They observed that the speed at which the entire transaction was executed — from the moment the property was transferred to Kabogo to the point it was set to sell to White Horse Investment Limited, all within four months — smacked of fraud, bad faith and deceit.
The judges said Obaga considered the fact that Aster Holdings Limited was kept off its property for over 10 years and lost investment opportunities, among other benefits.
Aster said it purchased both parcels from Nairobi Housing Development Limited for Sh6.5 million and Sh4.5 million that it applied for and was granted a change of user from residential to residential hotel and apartment. It was permitted to amalgamate the two parcels, after which a new title was issued in its name in 1999.
It was Asters case that in August 2007, Kabogo invaded the property, which was already part of the amalgamated property. The invasion was reported to the police, who offered no help. Feeling helpless, Aster opted for legal redress.
In response to the claim, Caroget, through its director Kabogo, maintained that it applied for allocation of the property in 2007 from the defunct City Council of Nairobi, which, he added, accepted the application and granted it a 99-year lease.
Kabogo in his suit documents insisted the property was not amalgamated with any other property.
However, the judges said the evidence on record showed it was not a case of double allocation but "one of shameless outright typical Kenyan style land grabbing, where Kabogo, in collusion with some of the officials working for the City Council, commissioner of lands, registrar of titles and the Attorney General, attempted to alienate private land that already had been alienated".
They said Aster Holdings did not commit any fraud when acquiring the property and the process had never been challenged.
“The totality of what we have said is that Aster’s title was faultless while that of Kabogo was tainted with fraud, illegalities and irregularities,” they said.
