Puzzle of Nairobi land grab dispute

Some four days before Jomo Kenyatta died, the then Commissioner of Lands, James Raymond Njenga, received an order from the ailing President relating to a 12.4-hectare piece of land in Nairobi.

Although the document to the registrar of titles dated August 16, 1978 did not have Kenyatta’s signature, Mr Njenga, together with the registrar, B.C. Murage, signed a 99-year grant for LR No 12562, a piece carved out of LR 11379/3, backdated to July 1, 1978. It was a classic case of land grabbing – perhaps the single largest in Nairobi’s history – that triggered a free-for-all allocation of a private farm to individuals.

Some 38 years later, the crisis caused by this single move has metamorphosed into a complex case involving ageing owners of a land parcel worth billions and individuals who became victims of a well-calculated land grab. How it is being resolved is a classic story of ingenuity.

For those familiar with Nairobi’s Eastlands, the land includes Umoja II Estate, Komarock, Mama Lucy Hospital, Nasra Estate, Emco Industries, Baraka Mowlem, Sosiani Estate, Benrose, Mahatama and Kariobangi’s Civil Servants Estate. In between, there is the Dandora railway line which passes through the farm.

IN 1964

The story of this land LR 11379/3 starts in 1964 when two brothers, Nawaz Khan and Abbas Khan, inherited their father’s land and, two years later, in a hurry to leave the country, they decided to sell the land to Kiambu Dandora Farmers Company – by then not a limited liability company. The land was purchased for Sh200,000 and registered in the name of five trustees in April 1970.

But soon after the purchase, leadership wrangles emerged and the trustees were accused of planning to transfer the land to themselves after they were listed as directors of the company. There was some truth in this.

A letter dated April 1, 1970 from the registrar of titles indicated that the five were the “registered proprietors ... of the estate” As a result, a new company known as Dandora Housing Schemes Limited was formed in August 1971 and whose written objective was to “take over the property known as LR 11379/3.” As a result, two companies with similar members were claiming the same land, now worth billions of shillings.

DESPERATEOFFICIALS

The purchase of this farm came at a time that government officials were desperate to get space in the outskirts of Nairobi for future expansion. Attempts to purchase the Joreth Farm, along Thika Road, owned by Israeli tycoon Jacob Hirschfeld and Doonholm Farm owned Joseph Goldberger – and on which now stands Tena Estate, Doonholm and Savanna Estates – had collapsed in early 1970, forcing the then Commissioner of Lands, James Aloysius O’Loughlin, to cast his eyes on the Kiambu Dandora Farm where he wanted some 300 acres for future housing expansion.

In one of his letters, Mr O’Loughlin told the Kiambu Dandora officials that “as far as I could see at present, government would require some 300 acres of (your) land.”

In between – even as the government eyed this land – the wrangling parties had agreed that the parcel should be sub-divided between the members and a meeting held on October 14, 1973 resolved that since both Kiambu Dandora and Dandora Housing had similar members claiming the same farm, “… the land should be sub-divided and each individual gets his piece.”

AN APPLICATION

The Secretary of Kiambu Dandora Farmers, Keingati Waiharo, told the meeting that he had already filled an application with the Lands Commissioner to sub-divide the farm. But this application seems to have triggered the government’s reaction. In March, 1974, the Commissioner of Lands gave notice to acquire all the 818 acres owned by Kiambu Dandora “for future urban development.” It was a compulsory acquisition and the chief valuer of land deposited Sh1.3 million at the High Court awaiting the determination on who owned the land.

“What the government was saying was that they didn’t know who owned the land,” says Addillahi Muiruri, now a director of Kiambu Dandora Farmers Limited.

This cheque was never cashed as various cases were lodged in the High Court to determine the true owners of the land – though the mother title was still held by Kiambu Dandora Farmers Limited.

The departure of Land Commissioner O’Loughlin and the entry of Mr Njenga changed the fortunes of Kiambu Dandora for worse.

To facilitate the land grab, a new company known as Civil Servants Housing Company Limited was registered with three shareholders – Wajir nurse Dayib Hassan, a Mukurweini administrative chief James Wathanga and a Mr David Musembi.

OTHER MEMBERS

The other 10 members who held no shares included Lands Commissioner Njenga, Joseph Gethenji; then Permanent Secretary, Directorate of Personnel Management and later Tetu MP, Kimani Wanyoike, who was the Secretary-General of the Civil Servants’ Union and Harrison Mule, a Deputy Permanent Secretary. More senior civil servants were included later.

The initial idea was to build 442 houses for civil servants in Nairobi and Mr Njenga supervised the allocation of an illegal title to the Civil Servants Housing Company whose registered office was Moi Avenue’s Nature House, then owned by the Kenya Union of Civil Servants and in which senior officials – Mr wa Nyoike, A.M. Nyakundi and A.M. Jefwa – were listed as members.

But the land which Mr Njenga and Mr Murage gave to the Civil Servant’s Union was not government land but part of 818 acres (LR 11379/3) owned by 225 members of Kiambu Dandora Farmers Company Limited.

“We still have the mother title that indicates that this is still our land,” says Mr Muiruri.

As that was happening, the uncashed cheque that was deposited at the High Court in 1974 was not touched. Tussling and confusion on the fate of this land continued. While the government purported to own the land, the members insisted it was theirs and continued to fight in courts.

A LOAN

Meanwhile, Njenga continued with his project in Kariobangi’s Civil Servants estate where the Civil Servants Housing Company Limited had received a loan from Kenya Commercial Finance Company. The houses were on a tenant-purchase agreement but even by 2009, Parliament was still being told that the owners of Umoja II, Dandora and Kariobangi would get their titles once the documents were received from the defunct City Council of Nairobi – which purported to own the land. As a result, thousands of investors found themselves squatting on and purchasing land that was neither owned by the government nor the council.

And not only locals fell into this trap. When USAID and the World Bank were looking for land to finance what would later become Nairobi’s Umoja II and Kayole, they were herded to this open space which the Nairobi city fathers took over and handed to the project.

Umoja II Project started in 1985 and was to provide condominiums instead of housing units on individual plots and thousands of individuals were tossed into what they thought was government land. They had also been duped.

ALLOTMENT LETTERS

Inside City Hall, a new Director of City Planning, Kuria wa Gathoni, had taken over in early 1990. A man credited for his notoriety and prowess in dishing out most of the public spaces, he continued with the slicing of this land and issuance of allotment letters. It was this time that former President Moi joied the fray and started approving the allocation of some of the Kiambu Dandora farm.

When Nyeri politician David Munene Kairu (the man who had developed Nairobi’s Savanna Estate) wanted part of this land, he wrote a letter to the Commissioner of Lands, but first, he took it to President Moi for approval. Moi consented to the allocation of 22 hectares for the development of Amboseli Court – where Kayole’s Shujaa Mall is located.

At this time, 1991, the government had started settling some Soweto squatters in the adjacent parcel of land in Kayole and the Commissioner of Lands Wilson Gachanja complained to the Nairobi City Town Clerk that the balance of land left by the Soweto squatters “cannot accommodate these direct grants.” But the land Mr Gachanja was talking about was actually the Kiambu Dandora farm, which was given to Mr Kairu.

In the run-up to the first multi-party elections, senior politicians descended on the land and started allocating it to their supporters. The selling of the Kiambu-Dandora plots became a circus of land grabs and hundreds of people were sold plots here.

“After this, the cheque (that the government had deposited at the High Court in 1974) was stolen and an attempt made to cash it. But before it was cleared, it was realised that the person who took it was not the owner of the land. The payment was stopped and the cheque was returned to the Commissioner of Lands. As a result, the purported acquisition of the land was not completed,” says Mr Muiruri.

PROVISIONAL CERTIFICATE

The return of this cheque also saw various other attempts to get a new title to the expansive land. A fake provisional certificate, issued to ostensibly replace a lost one, was issued on August 6, 1998 in a bid to transfer huge chunks of land to unsuspecting individuals.

Criminal Investigations Department records indicate that this document was later adjudged to be fake and two individuals – Cornelius Waithaka and Joram Maina – were charged with presenting a fake document to the Registrar of Titles.

In one of the many court proceedings on this land, the High Court was told that when this provisional certificate was issued to Mr Waithaka, he purported to transfer the land to Dandora Housing Scheme Limited and eventually to his own company, Ms Falson Kenya Limited, on December 11, 1998.

He also charged some parts of the land for Sh10 million. In one of the rulings, Justice Kasanga Mulwa found that Mr Waithaka was not even a shareholder of this land.” By this time, conned investors had started developing parts of this land – oblivious of the fact that they did not have titles. Among those who had been allocated space here were companies including Coca-Cola, Steel Structures, Emco and Mowlem.

KIAMBU COMPANY

What was known was that the government had not cancelled the mother title – which was still held in the name of Kiambu Dandora Farmers Company Limited – nor had it compensated the owners of the land, triggering huge land confusion in Nairobi’s Eastlands.

Meanwhile, civil case No 1348 of 1972 was finally settled in October 2006. The High Court ruled that LR 11379/3 belonged to Kiambu Dandora Farmers Limited and the owners are those who contributed to its purchase before July 2, 1967.

As a result, developers who had bought plots here, via presidential order or through allocation by the Commissioner of Lands or through the brokers, found themselves with land whose title was held by its original owners.