Beneath Diani’s beauty lies tales of land grabbing

Wednesday March 18 2020
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In the conspiracy to steal land in Diani, government officials forged title deeds. PHOTO | NATION MEDIA GROUP

By BRIAN WASUNA

From past and present government bureaucrats to well-known astute businessmen, the list of land owners in Diani reads like the guest list at a high-level political function.

Names like former National Land Commission chairman Muhammad Swazuri, Nairobi deputy governor aspirant Agnes Mugure, former Interior Principal Secretary Mutea Iringo, Ms Judy Njindo — sister of former politician Stanley Matiba — and former MPs Katana Ngala, Abdalla Ngozi and Omar Zonga grace the list of land owners in the Diani Complex.

That, at least, is according to documents filed in the Mombasa High Court by Leisure Lodges, which just two weeks ago secured a judgment declaring it the valid owner of one of Kenya’s most prime pieces of real estate.

Diani, in Kwale County, boasts the most beautiful beaches in the world and has hosted some of the most famous and influential individuals in the world.

Former Manchester United manager Jose Mourinho, German politician Luts Skorsky, Hollywood stars Angelina Jolie and Brad Pitt are just some of the big names that have visited the south coast town.

GRABBING

But beneath the beautiful sandy beaches of Diani lies blood, clever schemes and high-handedness by senior government officials that have now played out in Mombasa courts, lifting the lid on how the who’s who came to own their little slice of heaven on earth.

Twice, land in the Diani Complex has been grabbed from legitimate owners.

In one of the plots that ran between 1990s and 2000s, senior government officials posed as squatters and allocated themselves prime pieces of land in bogus resettlement schemes for the landless.

Some have since sold their land to unsuspecting businessmen looking to make a killing from the tourist industry.

Two weeks ago, High Court judges Eric Ogola, Thande Mugure and Dora Chepkwony ruled that Leisure Lodges Ltd owns 187.3 acres of Diani — most of what is today the Diani Complex — giving the firm permission to evict over 500 individuals and companies that have settled there.

But Diani’s story traces back to Reaby Eleanor Vere Wailes, an Englishwoman who owned 328.5 acres of land in Diani that have been subdivided and exchanged hands.

STATE ACQUISITION

Ms Wailes had settled in Diani while her brother Reginald opted for Naivasha.

Reginald died in Nairobi on September 8, 1966 and Ms Wailes was appointed administrator of his estate.

She owned a ranch in Diani that was registered as agricultural land with a 99-year lease running from January 1, 1914.

Her land was 9.2 acres larger, but on April 8, 1971 the government compulsorily acquired some parcels in the area for road expansion.

Commissioner of Lands James O’Loughlin, whose name has popped up in many a suspicious land transfer, published a gazette notice notifying 49 land owners in Diani that the government was acquiring a total of 85.4 acres of land in Diani.

Mr O’Loughlin invited the land owners for an inquiry on their compensation claims that was held on May 7, 1971 at his Nairobi office.

On March 22, 1978, Ms Wailes agreed to sell a 328.5 acre portion of her land to Rahimkhan Afzalkhan, Daniel Mwangi, Pauline Mwongela and Sayed Hussain for Sh140,000.

NEW OWNER

The deal looked done on April 8, 1978 when the Lands ministry issued a lease to the four individuals.

But on April 28, 1978, the Director of Agriculture protested the sale, arguing that a member of the public only identified as Mr Kahara was interested in buying the land together with his unnamed friends.

Three weeks later, the lands registrar’s office wrote to the new land owners demanding that they surrender their title deeds, which would be processed to indicate that Mr Kahara had been given the land. They refused.

The registrar’s office told them to keep the ownership documents because a new title would be created and issued to Mr Kahara.

By May 24, 1978, the land had been registered to Kasika Developers, which was nearly faceless.

The only known fact about the company was that Mr Kahara was a director and that it wanted to acquire the land through any means possible.

FORSAKE DEED

A year later, the Registrar of Titles issued a directive that the title held by Mr Afzalkhan, Mr Mwangi, Ms Mwongela and Mr Hussain be cancelled.

Interestingly, the directive was never implemented and records to date still show that the four individuals legally acquired the land from Ms Wailes.

There were now two title deeds issued for the same land, something Attorney-General Charles Njonjo confirmed in exchanges with the Chief Lands Registrar in the same year.

Mr Afzalkhan, Mr Mwangi, Ms Mwongela and Mr Hussain were now also under extreme pressure.

They had been arrested, detained and tortured several times in the hope that they would accept a refund from Ms Wailes and forget about the land.

Their lawyer S P Master wrote to Ms Wailes on May 8, 1978 informing her of the developments.

Mr Master revealed in the letter that Kasika’s lawyer, a Mr Wamba, advised that the four accept a refund because there “might be some questions from other quarters including the CID Section to answer, which might very well affect them adversely”.

WAILES' DEATH

In 1991, Mr Afzalkhan, a logistics industry guru, fled to Tanzania after a few days of torture in the hands of police officers. While in Tanzania, he succumbed to his injuries.

One of his sons, Mr Samir Khan, was also killed in April, 2012. Mr Khan’s body was found at Tsavo National Park just days after being kidnapped by unknown people.

Police branded Mr Khan a terrorist linked to Al-Shabaab, but his family to date insists he was killed to stop them from pursuing compensation for their botched investment in the land.

Ms Wailes died on June 17, 1985 in Mombasa. Her son Timothy inherited her assets, which now excluded the land.

By this time, the land had been subdivided into 962 portions and transferred.

Veteran trade unionist Juma Boy Juma was one of the beneficiaries, though it is still unclear when exactly he got a 187.3 acre portion — more than half of the now controversial land.

The two-time Kwale District legislator had acquired 10 parcels.

LEISURE LODGES

When Mr Juma died on July 19, 1983 his family, led by former Kwale Senator Boy Juma Boy, inherited the land.

Four years later, the family sold it for Sh11 million to Leisure Lodges, which would then suffer the second wave of land grabbing orchestrated by government bureaucrats.

The firm’s dealings with the land over the years have mostly been short of leisure, as district commissioners and lands ministry officials have since 1990 grabbed a piece of the property for bogus squatter resettlement schemes before transferring it to themselves or selling it.

Leisure Lodges, while suing in 2010, claimed former district commissioners Moffat Kangi, Fred Mutsami and Abdul Mwasera coined the bogus squatter resettlement schemes between 2000 and 2008.

Former Kinango MP and Lands assistant minister Gonzi Rai has also been accused of inciting locals to invade Leisure Lodges’ land while claiming it belonged to the Digo community.

He is also accused of posing as a squatter to get a chunk of the land.

FAKE MAP

The court file further indicates that former Lands ministry officials Agwata Mabeya and JM Okungu (lands commissioners), Alex Mutua and M Jembe (district land registrars), and O Eshiwani and Amos Simiyu (district land surveyors) then created a fake map of Diani that would indicate that the Leisure Lodges land was actually part of the parcels to be given to squatters.

From then on, any government official that was in a position to take action on the land grab was given their little slice of heaven to ward off any noise.

Government officials that allegedly posed as squatters and got land rewards were the three former district commissioners, Wilson Gichuhi, Fredrick Nyuni, and Beatrice Peter (police commandants), Mgandi Mgandi (National Intelligence Service officer, Kwale) and Vitalis Ochondo (OCS Diani Police Station).

Others listed are former Kwale County Council clerk Wilberforce Malanga and former Msambweni MP and ex-Land Control Board member Omar Zonga.

Leisure Lodges claimed it purchased a 20-acre piece in Gombato, Ukunda, for settlement of squatters, but that it only did that out of compassion.

PUBLIC LAND

The Gombato title deed was handed over to Mr Japhet Asige, the lawyer that handled the transaction, but apparently it was never released to lands officials for subdivision and allocation to squatters.

The Attorney-General’s office argued that Leisure Lodges failed to deliver the Gombato land as per an earlier negotiation in relation to the land and hence revocation of the firm’s title was legal.

Mr Asige, according to Leisure Lodges’ court filings, also owns part of the land that the firm said was grabbed from it.

But the AG’s office, representing the lands officials, insisted that the land in Diani was government land that was intended for a tourist centre.

The AG added that the government abandoned the project in 1979 after realising it was not sustainable.

Instead, the land was allegedly allocated to squatters, Leisure Lodges for a golf club and a block of apartments only, Darad Farm — a sister company to Leisure Lodges — and a veterinary farm owned by the Livestock ministry.

EVIDENCE

Justices Ogola, Mugure and Chepkwony however ruled that the government institutions did not attach any documents to prove the land was ever private, while Leisure Lodges’ claims were escorted by valid papers.

“The respondents did not provide any evidence to rebut these claims. Their focus has been on the alleged reneging by Leisure Lodges on the condition upon which it was given plot 856.”

“One would have expected the commissioner for lands, chief land registrar, district land registrar, director of survey, director of physical planning, administration police commandant, Attorney-General and Kwale County Council to provide documentary evidence showing just when and how the Diani Complex Settlement Scheme came about,” the three judges ruled.

While some of the names produced in court are well-known, others are nondescript but appear in several parcels.

One Juma Kamonde, for instance, appears as an owner in nearly 20 plots of land in Diani Complex. Some of the parcels he appears in are the subject of separate, ongoing court cases regarding ownership.

The land has had its fair share of drama. For instance in 2008 when lands officials got officers from the Administration Police to aid in surveying the land afresh.