Ex-lands boss entangled in Nakumatt Thika Road case

Former Commissioner of Lands Wilson Gachanja illegally took possession of a prime piece of public land and sold it to a private company that built the demolished Nakumatt Thika Road, Attorney-General Githu Muigai has said.

Prof Muigai says in court filings that Mr Gachanja grabbed the land and sold it to Fleur Investments Limited, which was “a cog in the former commissioner of lands’ fraudulent scheme.”

Mr Gachanja subdivided the land to have it issued with new and genuine title deeds before selling it to Fleur, the AG says, adding that Fleur Investments then applied to re-subdivide the land.

The AG holds that after purchasing the land, Fleur subdivided it into two so as to get fresh ownership documents for the property, a move that would conceal the fraudulent transfer of the land.

Fleur’s ownership has not been revealed in the suit, but its general manager is listed as Alex Trachtenberg who is also a director in Sony Holdings — the company that owns Nairobi’s Westgate Shopping Mall.

The AG says Mr Gachanja registered the land’s title deed to his company — Adeita Limited — which then sold the land to Fleur Investments in 2001.

Fleur Investments built a mall on the piece of land with Nakumatt as its anchor tenant until 2009 when the building was demolished to pave way for the Thika Superhighway. The revelations have been made in a suit Fleur

Investments filed against the government seeking Sh7.5 billion compensation for the demolition. The Court of Appeal has allowed Prof Muigai to file a counterclaim and to enjoin Mr Gachanja and Adeita Limited.

“With the intention to conceal the invalid title to Adeita Company Limited, Fleur Investments applied to re-subdivide the land and purported to create new grants in respect thereof. Fleur hoped to obfuscate the true origins of its title to the suit properties. Fleur Investments knew or ought to have known that L.R 4921/2 was land which had been compulsorily acquired for a purpose and was therefore not available for alienation to private persons,” Prof Muigai argued.

Fleur Investments filed the suit against the Ministry of Roads and the AG.

The High Court in 2013 dismissed Prof Muigai’s request to file the counterclaim, but the AG challenged Justice Lucy Gacheru’s decision in the Appeal court. Prof Muigai argues that the government only learnt about Mr Gachanja’s alleged scheme after Fleur sued it for compensation.

Court of Appeal judges G.B.M. Kariuki, Festus Azangalala and Jamila Mohammed ruled that the High Court was wrong in refusing to grant the AG time to amend his defence to the suit and lodge a counterclaim of Sh5 million for damages and trespass by Fleur Investments and Mr Gachanja’s Adeita.

“We think that the learned judge of the court below failed to appreciate where justice lay. Leave is hereby granted to the Attorney- General and the Ministry of Roads to amend their statement of defence and set up a counterclaim. Leave is additionally granted to join Wilson Gachanja and Adeita Company Limited as the first and second defendants to the counterclaim,” the Appellate Court ruled.

Prof Muigai holds that the land was compulsorily acquired by the government in 1964 from a company identified as Joreth Limited, which was compensated for the property. He adds that Mr Gachanja, through his Adeita Company Limited, fraudulently acquired the land in 1993 and sold it to Fleur in 2001.

Fleur Investments, through Mr Trachtenberg, held that the AG’s planned counterclaim was filed in bad faith as it is intended to delay the hearing of the company’s compensation suit.

Mr Trachtenberg held that Fleur was an innocent purchaser whose acquisition of the property was aided by government officials who documented the re-subdivision of title deeds.

Mr Gachanja, a long serving commissioner of lands in the Moi era, has been linked to over 300 land grab cases alongside his successor Sammy Mwaita.

Fleur Investments Ltd wants the court to compel the Roads ministry, through the Attorney-General, to pay for the destruction of its premises and lost business opportunities.

The mall that housed Nakumatt Thika Road branch was among a host of buildings that were brought down to pave way for the dual carriage superhighway that has since been completed.

The road was constructed by China Wu Yi Company, Sinohydro Corporation and Sheng Li Engineering for Sh32 billion.

Mr Gachanja’s name has come up in several irregular land transfer deals around the country, and was in 2010 named as a person of interest in several investigations by the Ethics and Anti-Corruption Commission.