For 34 years, suave city businessman Francis Mburu plotted to have his cake and eat it. An affidavit that seeks to tie the knots in the multibillion shilling Ruaraka land saga seeks to show Mr Mburu schemed to defraud the government for three decades and how he may have finally succeeded.
Filed in court by Ethics and Anti-Corruption Commission — the affidavit seeks to show how the plot, on its final bend, drew in four PhD holders, Cabinet Secretary Fred Matiang’i, Principal Secretary Treasury Kamau Thugge, and Education Principal Secretary Belio Kipsang to help him jump the final hurdle to the government coffers. The other was National Lands Commission chairman, Prof Muhamad Swazuri.
The affidavit has been filed in a case in which the EACC has opposed plans to stop civil or criminal proceedings in relation to the Ruaraka land, saying it would defeat the investigations being carried out by the commission. NLC moved to court seeking to determine the validity of the title deed of the controversial land and the payments made.
In the application, NLC further wants an order stopping all civil and criminal proceedings in relation to the compulsory acquisition of the land by the Ministry of Education.
In the transaction, Mr Mburu — who was to develop a housing estate on his Ruaraka land now occupied by the General Service Unit — not only got compensated for a land that he had surrendered free of cost to the government in 1980s, but also made the government buy land that he had already surrendered as a condition for developing the estate.
For the first time, the affidavit has brought in Dr Thugge into the picture and sheds light on the collusion question which might be at the heart of future prosecutions on the land saga.
EACC says that although a team had investigated and found that the schools were built on a surrendered portion, the Ministry officials changed the land's status to private.
The investigators claim that the controversial 1984 letter written by Mr Mburu “purporting” to cancel the conditional 1983 subdivision which saw him surrender part of his land to the government could have been part of a “well-choreographed scheme to perpetuate fraud”.
It is this letter, according to investigators, which laid the basis for his claim for compensation, arguing that private land ought to be compensated under “compulsory acquisition”.
How Mr Mburu plotted his scheme has been laid bare by the affidavit which shows how the conspiracy developed over the years.
The court will be told that the 1983 subdivision was revised in 1985 with the same surrender conditions approved by the Director of Surveys.
In a letter dated February 24, 1984, Mr Mburu as the managing Director of Drive-In Estate Developers Limited — which was developing the property — confirmed to the Commissioner of Lands that there would be no objection to the surrender of the portions if a guarantee was given that the Commission will develop the sites of the schools without delay.
Mr Mburu later requested for compensation before the surrender of the portions on the basis that private land should be compensated against acquisition. In that regard, Mr Mburu demanded a sum of Sh5,850,000 based on a valuation purportedly carried out by a former Chief Valuer of the Government. But this never happened.
While this scheme went in limbo for 26 years, Mr Mburu revived it when a private surveyor J. K’Obado, acting on the instructions of Mr Mburu’s companies Afrison Import Export and Huelands Limited, prepared a new survey plan FR. No. 375/53 giving rise to LR. No. 7879/24 and LR. No. 7879/25.
The court will be told that a Mr Z.M. Ndege for the Commissioner of Lands in a letter dated September 2011, notified Mr Mburu the sub-division scheme plan had been approved.
But the affidavit now says that “Z.M. Ndege who purportedly signed the letter for the Commissioner of Lands, was at the time a junior officer who had no authority to issue such approvals and secondly that he was stationed at Thika Lands Registry and therefore could not have granted an approval on LR. No. 7879/4 which falls within the jurisdiction of Nairobi.”
It is on the authority of this approval that the subsequent illegalities were committed, according to the EACC affidavit.
“The Commission further established that the approval of the aforesaid sub-division scheme plan by the City Council of Nairobi was irregular as it was done despite the land being in arrears of land rates amounting to over Sh3 billion, against the Council’s policy that approvals that should not be granted unless land rate arrears are cleared.”
When Mr Mburu finally decided to seek compensation, he wrote a letter to NLC.
The EACC investigator said in a letter dated February 3, 2017 to Dr Kipsang and copied to Dr Matiang’i that the team had concluded that the schools were on a surrendered portion for public utility from the LR. No. 7879/4 Drive-In Estate and thus the surrendered portion was utilised as intended for the public.
The report, the statement added, had recommended that the Cabinet Secretary, Ministry of Education and Prof Swazuri speed up the processing of the schools’ title to protect it from encroachment.
“But in total disregard of the aforesaid report Dr Kipsang in a letter dated 7 February 2017 to EACC stated that the schools are developed on LR. No. 7879/4 which is private land and that it was necessary to acquire the portion in the public interest," reads the statement by Alfred Mwendwa, an investigator with the EACC.
But in a surprise twist, and in blatant disregard of the report by the committee headed by John Ololtuaa that the schools occupied a portion that had been surrendered, Dr Matiang’i wrote a formal request to the NLC to commence the process leading to the acquisition of the schools’ land on the pretext that it was private.
On April 4, 2017, the NLC Chairman Mohamad Swazuri requested Dr Matiang'i to set aside the compensation funds amounting to Sh3,269,040,600 to be deposited in NLC's account.
Mr Mwendwa says the amount was even arrived at before actual valuation on the portion was carried out.
The valuation was carried out in June 2017.
The Commission says the orders sought by NLC are not in the public interest as it they will block EACC from recovering and protecting public money paid to businessman Francis Mburu.
The case did not proceed on Thursday after NLC asked the court to take the file to the Chief Justice for purposes of setting up a bench.
The matter will now be mentioned before the duty judge on August 28.
EACC said it would be in the interest of justice that the businessman be ordered to deposit in court Sh1.5 billion, which the commission has been pursuing.
"It would also be in the interest of justice that the balance of the compensation be preserved by stopping any further payment through an order of this court," Mr Mwendwa.
He said the conservatory orders sought by NLC seeks to impede the Commission from pursuing the recovery of Sh1.5 billion already paid out.
Through lawyer Tom Ojienda, the NLC said the case is a matter of priority to enable the commission get the way forward on how to proceed with the acquisition of the property.
He said a search from records held by the Ministry of Lands and Physical Planning, shows the property is held on freehold tenure and was registered in favour of Afrison Export Import Ltd and Huelands Ltd.