The National Social Security Fund (NSSF) will now have to fight in court to keep a 1,000-acre-portion of Ngong Forest it bought from Ankhan Holdings — a company associated with Jonathan Moi, Sammy Boit Kogo and Hubert Nyambu Mwakibwa — as the Kenya Forest Service seeks to reclaim the prime property.
The NSSF has been watching from the sidelines as Ankhan Holdings and the National Land Commission do battle on its behalf in court despite the fact that the pension fund stands to lose ownership of the property worth billions of shillings.
Ankhan Holdings initially sued the KFS in 2017 in the High Court to stop reclamation of the land.
One year later, Justice Kossy Bor dismissed the petition, which would have allowed KFS to maintain the property as part of Ngong Forest while leaving NSSF with only two options — lose the land or pursue Ankhan Holdings for a refund.
Ankhan Holdings appealed, and 10 days ago justices William Ouko, Daniel Musinga and Martha Koome ruled that the petition be heard afresh at the High Court, this time with the involvement of the NSSF.
The Court of Appeal judges faulted the High Court for not enjoining NSSF in the suit, yet the pension fund risks being the biggest loser if the KFS succeeds.
“In our view, when the matter came up for directions, the learned judge ought to have ordered that NSSF be joined as a party so as to enable the court effectively and completely adjudicate on all the issues raised in the matter. In the circumstances, the order that commends itself to us is to set aside the impugned judgement dismissing the petition and remit this matter to the Environment and Lands Court at Nairobi for appropriate directions, which should include NSSF as a party,” the Court of Appeal ordered.
The judges have ordered that the case be given priority and be heard by any judge in the lands division other than Justice Bor.
The National Land Commission (NLC) successfully applied to be enjoined in the suit, where it threw its weight behind Ankhan Holdings, arguing that the land was lawfully excised from Ngong Forest.
Zachary Ndege, NLC’s principal land officer, argued in his affidavit that the disputed property is not public land.
While the ownership of Ankhan Holdings has remained shadowy, its officials have been brought into the light through court proceedings and documents used to give the firm ownership of the land in 1992.
Former President Moi’s oldest son, Jonathan, wrote to the Commissioner of Lands requesting for allocation of the 1,000 acres.
Mr Moi said in the letter that he was acting on behalf of Ankhan Holdings, which sought to develop the property.
Following Mr Moi’s letter, then-Commissioner of Lands Wilson Gachanja wrote to the Ministry of Environment to ask whether the land was part of Ngong Forest.
And on May 21, 1993, the Ministry wrote back claiming to have surrendered the 1,000 acres with immediate effect.
Mr Gachanja allocated the land to Ankhan which paid Sh3.6 million in stand premium and annual rent. The land was registered to Ankhan on March 10, 1994.
Rather than develop the property as indicated in the request for allotment, Ankhan Holdings sold the land to NSSF on May 16, 1994 — just two months later.
The Court of Appeal noted that Ankhan’s suit was curious, as it had long sold the property to NSSF, which ordinarily should have been the suing party because it owns the land.
Neither the land nor Ankhan Holdings shares were listed among properties owned by Jonathan in a succession dispute involving his widows last year.
But a source close to the Moi family has since told the Nation that there are several properties Jonathan Moi owned that were not listed as part of his estate.
Interestingly, despite the title deed being registered to NSSF, it was Ankhan Holdings that wrote to the KFS in 2016 requesting permission to fence the 1,000 acre land.
KFS at the time refused and said that the land is gazette as part of Ngong Forest.
In 2004, the NSSF tried to get a refund from Ankhan Holdings and unsuccessfully sued the shadowy firm after an impasse. The NSSF sued Ankhan but enjoined Mr Kogo and Mr Mwakibwa as directors.
Alongside former Lugari MP Cyrus Jirongo, Mr Kogo was one of the architects of YK92, an outfit formed by youthful politicians to campaign for Moi in his 1992 presidential bid.
For the last two years, Mr Kogo has been pursuing a bankruptcy petition against Mr Jirongo, who allegedly owes him Sh700 million.
Mr Mwakibwa, on the other hand, has a very small digital footprint, and the Nation had not uncovered much about him other than involvement in the Ngong Forest saga.
The controversial property also has a slot in the report into irregular allocation of public land by the Paul Ndungu-led commission of inquiry.
It is among 94 other land parcels that the NSSF paid for between 1990 and 1995 and which were all worth Sh30 billion at the time Mr Ndungu’s commission was probing land grabbing in Kenya.