Education Principal Secretary Belio Kipsang, National Land Commission Chairman Muhammad Swazuri, and a good part of the leadership of NLC will likely face charges over a Sh3.3 billion land transaction.
In a strong move by the Ethics and Anti-Corruption Commission, 25 suspects have been lined up for charges relating to the purchase of land in Nairobi by the ministry of Education for which it paid Sh1.5 billion four months ago, with the balance being transferred to this year's budget.
According to Nation sources, the charges will range from conspiracy and wilful failure to breach of trust, money laundering, fraud, and abuse of office.
Detectives have been investigating the compulsory acquisition of land in a city suburb for two schools, and believe these payments were fraudulent because the land in question was a public utility, so the government bought its own land.
Others listed for possible prosecution are NLC commissioners Tom Koyimbih, who chaired the land acquisition and compensation committee meeting that took the decision to "buy" the land, and Emma Muthoni Njogu, chair of the legal committee.
VALUATION AND TAXATION
Others are Salome Munubi, the NLC director of Valuation and Taxation, and Patrick Kanyuira, the deputy chief State Counsel in the office of the Attorney-General.
Former AG, Prof Githu Muigai, has already written a statement relating to a legal consent that he gave for the purchase to proceed, as has Interior CS Fred Matiang’í, who was at the time the Education boss.
“I have already given a witness statement. The opinion we gave was not an approval, but rather an advisory of procedure,” Prof Muigai told the Nation.
EACC told the Nation on Tuesday that they have forwarded the files to the Director of Public Prosecutions, who had seconded detectives to help them fill the initial gaps.
The whole deal started on August 17, 2016, when a complainant wrote to the NLC that two schools were sitting on its land.
The Ministry of Education’s Quality Assurance and Standards department did an inquiry and established that the two schools were public institutions, and that the land on which they sat had been surrendered to the government — as a condition imposed by the Commissioner of Lands on developers who wanted to set up an estate — and an allotment letter issued to the PS Ministry of Lands in the 1980s.
In the opinion, the question of compensation did not arise at all. There were other problems with the land as it had a longstanding charge and the title had been taken by the receivers of the bank that had given the loan. EACC detectives, therefore, faced a conundrum: how could the Ministry of Education buy its own land and pay for it without a title deed, and with a loan hanging over it?
Dr Swazuri on Tuesday put a brave face. “We have the title to the land. People out there are simply looking for faults and not facts,” he told the Nation. But detectives believe a Nairobi law firm, Harit Sheth Advocates, is holding the title to this land.
On the Quality Assurance and Standards department report, Dr Swazuri said: “It is not provided for in law. If you are looking for quality assurances, go to KeBs (Kenya Bureau of Standards).”
Prof Muigai had asked NLC to “conduct an inquiry with a view to establishing the persons who have a legitimate interest in the land”, which include “proof of ownership demonstrated by valid title documents.”
The Commission was to also demand in writing the surrender of the title documents to the Registrar.
On Tuesday , Prof Muigai said: “The office of the Attorney-General issues advisories based on the information given. Such an advisory does not say we approve what you want to do — but we advise on procedures that ought to be followed.”
The AG’s opinion had advised that the two institutions were public schools, according to the report from the quality assurance team, but also advised the NLC to establish ownership and follow the correct procedure for compulsory acquisition as per section 120 of the Land Act.
The quality and assurance report recommended that Mr Paul Omondi Mbago, the official receiver and liquidator of a finance house that held the original title to the land, releases the school’s documents, and that Dr Matiang’i and Dr Swazuri “facilitate the processing of title deeds of the said public schools to have the matter settled once and for all, and to protect the school from grabbing or encroachment”.
A panel report handed to Dr Pius Mutisya Kimani, the Director of Quality Assurance and Standards at the Ministry of Education, had concluded that since the portion of the land where the school sits was surrendered for public utility, “the panels' view was that the claimant has no basis for compensation for the land.”
It was this panel, led by Ms Florence Hungi, the County Quality Assurance and Standards Officer, which concluded that the two schools are on public land, and that they were established on a space of land surrendered to the government — a mandatory requirement for developers of housing schemes. Although the two schools did not have a title, they had a letter of allotment as proof that this was public land.
A letter purportedly dated April 5, 1984 cancelling the sub-division is under investigation to determine the age of the document and genuineness of the signatures of the author.
According to EACC sources, a complainant started laying claim to the “open spaces” in April 2018, some 35 years after the sub-division of the land.
The then surveyor, Mr James Muriuki, said the survey plans were approved in 1985, and that “the open spaces, roads, shopping centres and other special purpose plots (had) been surrendered to the government free of cost”, the EACC sources told the Nation.
This was part of a condition given to the entity by the commissioner of lands to allow the approval of the sub-division of its land.
The puzzle now is why the businessman returned to claim the same land after more than 30 years, and got paid for it.
NLC triggered the whole thing when they wrote to the Education ministry that they had received a complaint about the land. Dr Swazuri told Dr Matiang’i that NLC had carried out a ground inspection and verified that there existed two schools. The complainant had also submitted an independent valuation report as a compensation claim.
Dr Matiang’i is said to have minuted the letter to Dr Kipsang for action and asked him to seek legal guidance and secure interest in the two schools. By the time of going to Press last evening, Dr Kipsang had not responded to the Nation’s queries on his role.
The NLC, according to sources, asked the ministry to deposit Sh3.3 billion in its account. Dr Kipsang, the sources said, liased with NLC, the AG's Chambers and the Treasury to process the payment.
The question is whether Dr Kipsang saw the report by his officers about the land belonging to the public, and, if so, why he committed Sh3.3 billion of taxpayers' hard-earned cash to buy it.