The beleaguered ex-Kiambu governor William Kabogo is staring at possibility of being declared bankrupt or have his property actioned.
2019 will be the year, the arrogant politician will meet his match as the High Court, that has already declared him a fraudster in a Sh3.5 billion land tussle make another ruling that could potentially alter his political and economic future.
The High Court will on January 21, 2019 issue directions as to whether Kabogo and his wife will appear in court to be cross-examined on their assets that are likely to be sold to recover the Sh100 million and interests. His interest include real estate in Kiambu road and his home in Ridgeways.
In 2017, the former Kiambu boss lost claim of ownership of a Sh3.5 billion prime property in Nairobi after the High Court declared that he had forged ownership documents.
Consequently, High Court judge Elijah Obaga had ordered Kabogo to pay Aster Holdings director Nayan Patel, the legitimate owner of the 7.5-acre land, Sh100 million for illegal possession and trespass, bringing to an end a 10-year tussle for the parcel of land.
On 31st October 2017, Land and Environment Court judge Obaga ordered Kabogo to pay Patel, the legitimate owner of the 7.5 acre land in Westlands, Nairobi the Sh100 million for illegal possession and trespass.
Kabogo then unsuccessfully returned to take same court seeking to overturn the decision but Justice Obaga stuck to his guns.
However this year, things took a new twist after the now cornered Kabogo returned to court seeking to escape paying the fine.
This is after Patel said he is unable to identify any propriety associated with Kabogo’s firm prompting him to return to court to compel Kabogo and his co-directors to appear before a judge.
‘Your honour, we have tried to trace the assets, bank accounts or any documents relating to Garoget investment limited but all in vain. It’s apparent that this court summons the directors of the company as they are trying to conceal their identity and properties of the company,” Patel through lawyer Cohen Amanya told the Court.
On 7th June, 2018 the ex-Governor opposed the application to be summoned to court saying he is not a director of Caroget.
This is in spite of having appeared early before Justice Obaga for cross-examination as a director of Caroget investment, which was done under oath.
Documents filed in court indicate that Caroget directors are Acres & Homes and Esther Njeri Gitau while William Kabogo Gitau, Patrick Gichure Kamau and Andrew Kamau Kabogo are listed as directors of Acres & Homes.
“Caroget Investments contends that Kamau Kabogo, Patrick Gichure Kamau and William Kabogo Gitau are not directors of Caroget and cannot be summoned to produce Caroget’s financial statements, be cross examined on the same/ or liable for the decree. Acres and Homes limited is a different company from Caroget and cannot be held liable for debts of Caroget,” Kabogo’s lawyer Nelson Havi said in an affidavit dated 1st August 2018.
But Patel accuses Kabogo of dishonesty and wants him cited for perjury. “Caroget Investments has no identifiable and attachable assets known to the decree holder and can be called a shell company. The respondent being an artificial person is committing such acts as dishonesty through its officers and shareholders who are physically around but shielding themselves from their legal obligation to pay debts using the corporate veil.”
Mr. Patel through his company Aster Holdings limited moved to court in 2010 in civil case number 562 of 2010 and sued Kabogo’s firm Carogate Investment Limited, City Council of Nairobi (now City County), the Commissioner of Lands, Attorney General and Registrar of Titles.
In his ruling Justice Obaga ordered Kabogo and City Hall to deliver possession of the land to Patel while issuing a permanent injunction to the registrar of titles from accepting, acting upon or effecting any sale, lease, charge transfer or alienation and/or dealing in any manner howsoever with the land.
“A declaration is hereby given that Caroget investment limited unlawfully and illegally occupied and took possession of the suit property and these acts amount to trespass and that Aster is entitled to the sole possession thereof. An award of Ksh100, 000,000 general damages to be paid by Caroget investments,” the declared ruled in a 25 page ruling.
City Hall and Kabogo have also been ordered to meet the cost of the suit estimated at Sh17 million for the plot that is situated along Mvuli Road in Westlands Nairobi, 4.8 kilometres from the city centre.
The ex-Governor appeared before Justice obaga in May 2017, and defended himself saying he had applied for allocation of the land in 2007, which was accepted by City Hall that granted him a 99-year lease.
He then sought to sell the land to White Horse Investments Limited and that the transfer could not be registered after former Commissioner of Lands Zablon Mabea confiscated his documents and shredded them.
The shredding happened as Kabogo watched; he then drew his gun and threatened to shoot Mabea who was unmoved. Mabea then cancelled the title prompting Kabogo to move to the High Court which quashed the decision and ordered Mabea to issue a provisional title.
In his determination, the judge said that although Kabogo claimed to have applied for the allocation in 2007, documents availed in court shows that the alleged allotment was done in 2006.
City Hall transferred the suit property to Caroget on 11th May 2007 who took possession after chasing away guards of Aster holdings.
This forced Mr. Patel to lodge a complaint with the CID and EACC which prompted City hall to write to the two agencies advising that the Commissioner of Lands had discovered that the deed plan used by Kabogo was fake and recommended revocation of his documents.
“City Hall is the one which obtained allocation of the suit property which was registered in its name before it was transferred to Caroget. City Hall has since disowned the title and recommended its revocation. Though City Hall has been pretending to be innocent in the whole scheme, it has not come out clearly on the position it has taken in the matter. In the first suit, City Hall claims to own the land. In its evidence in court, it completely changed the story and indicate of the plot belongs to Aster holdings.”
In the High Court Miscellaneous Civil Application No.30 of 2009, one of its officers swore an affidavit which supported the claim by Kabogo who had applied for Judicial Review and in its submissions, Caroget claims it was under mistaken belief that the property belonged to it and that this mistaken belief as fueled by issuance of title to it by the Commissioner of Lands.
“The first defendant (City Hall) is trying to feign ignorance of what was going on. The letter of 19th December 2006 is clear that City Hall and Caroget had hatched a fraudulent scheme to have the suit property taken by Caroget. The deed plan which Caroget presented was forged,” the judge ruled.
The businessman had told the court that Aster holdings bought the land from Nairobi Homes in 1997 and applied for extension of lease on 1st July 2001 and was granted the parcel of land I.R 86125/2 witnessed by then commissioner of lands Sammy Silas Komen Mwaita (now Baringo Central MP).
He said his firm enjoyed peaceful possession of the land LR 1870/V/2447 measuring 3.069 hacters (approximately 7.5 acres) until on the 28th May 2007 when unknown people invaded the property demolished structures and erected new fence.
The case was reported to Nairobi CID who investigated it and recommended the prosecution of the directors of Carogate, former director of legal affairs at City hall Mary Ng’ethe and former deputy director of survey Polly Gitimu. However no once was charged.
Three more witnesses who include registrar of tittles, government surveyor and state counsel are scheduled to testify on the 15th of this March when the case resumes.
The case had early experienced pitfalls in 2012 after unknown people threatened then high court judge Philomena Mwilu, now Deputy Chief Justice, who disqualified herself. Its suspected Kabogo was behind the intimidation as it became clear that the judge will not help him the fraud scheme.
Former Chief Justice Willy Mutunga wrote to the then Director of Public Prosecutions (DPP) Keriako Tobiko asking him to investigate the threats on the judge.
“It appears there have been threats directed against counsel and judges in this case. Counsel did mention the latest threats targeting Mwilu, J who can be asked to record a statement,” Mutunga’s letter dated March 7 2012, reads in part.
The former CJ said he was concerned that if the allegations are not investigated and culprits punished, the administration of justice will be diverted. The matter was never dealt with as ex-DCI Ndegwa Muhoro covered Kabogo.
According to documents in court, Ms Ngethe rescinded her request to the survey of Kenya to issue a deed plan in favour of Carogate on the disputed land on clams that it was fraudulent.
“This is a further letter to the one dated 4/06/07. After further scrutiny we have established that the Council did request Survey of Kenya’s vide letter dated 9th December, 2006 to issue a deed plan but in the process the due process was not followed, this anomaly has since been rectified. We therefore urge you to ignore the above letter,” Ms Ng’ethe wrote to then Commissioner of Lands Judy M. Okungu.
In her statement, Mrs. Okungu who served as Commissioner of Lands from 2003 to 2007 said she had received a letter from City Hall informing her that the deed plan used to issue title deed to Carogate was fake. She however said the letters arrived alter as the title had already been issued.
Part of the land, parcel measuring 2.105 hectares was originally owned by John Blowers who later transferred it to Nairobi Homes in the 1970s, together with another parcel approximately 2.92 acres. The two plots were later transferred from Nairobi homes to Aster holdings that applied and received approval for amalgamation.
On their side, Carogate directors said the defunct Nairobi City Council allocated them the parcel of land on May 17th 1997 but documents availed in court shows that the alleged allotment was done in 2006.