The 0.6-acre parcel LR No. 2093217 along the Makueni, Suguta and Oloitokitok roads is the subject of an audit query raised by Auditor-General Nancy Gathungu.
The query affects the accounts of the state department for Housing and Urban Development for the 2018/19 financial year.
The audit report currently before Parliament has adversely mentioned the State Law Office and the Department of Justice for playing a big role in the irregular acquisition.
On Thursday, the Public Accounts Committee (PAC) of the National Assembly, which is considering the audit report, heard the land was owned by the government and that the Housing department had in 2008 constructed residential houses on it and sold them to civil servants.
But Mr Hirji Seyani, a general building contractor, went to court seeking compensation and damages after the government demolished property on the land and erected new units that were sold to civil servants.
Mr Seyani, who appeared before the PAC on Thuesday, said he bought the land from a Mr Peter Kipchirchir Magut in 1999 at Sh5 million.
This is despite documents submitted to the committee indicating the land had a government house (HG 271) occupied by Mr Winston Orege, a civil servant, who was paying rent to the government.
Veracity of Title Deed
“The house was occupied by Mr Orege, a civil servant who was paying rent to the government,” the AG says in documents before the committee.
The AG’s office went on to state the particulars of fraud in the case as per the documents before the committee.
They include making a document – title deed – without authority, claiming grant without following the laid-down procedure and knowingly entering into a transaction with a person without any proprietary rights over the suit land.
The others include knowingly failing to carry out any search to establish the veracity of a title deed and setting up a title deed against a government property.
“No appeal was made against this award, which remained unpaid as at June 30, 2019 and accrued interest amounting to Sh37 million,” the audit report says of the Sh100 million in compensation that was awarded to Mr Seyani on June 28, 2016.
Why the AG’s office failed to appeal against the award judgment despite these possible fraud grounds remains unclear.
Interestingly, Mr Seyani admitted to the committee yesterday that one term of the agreement was the property would be sold with vacant possession and without any encumbrances.
As a result, the property was transferred to Mr Seyani and the transfer filed with the registrar of titles on December 13, 2000.
“When you bought the land, did you confirm it was in vacant possession and had no encumbrances?” Mr Opiyo Wandayi, who chairs the watchdog committee, posed.
Mr Seyani, however, remained tight-lipped.
“We have a problem with how this public land was handled. If it wasn’t fraudulently acquired, there would have been no award. The court compelled the government to acquire its own land,” the Ugunja MP added.
Tongaren MP Eseli Simiyu, a member of the committee, said there might have been collusion involving senior government officers.
“This is a story of Kenya and Mr Seyani is part of it. We sit here as morticians seeing how people have stolen from Kenyans,” an agitated Dr Simiyu said before storming out in rage.
Documents before the committee showed Mr Seyani sought to be paid Sh120 million in compensation, Sh10 million for the demolished house and a projected profit of Sh4 million for each of 20 units.
This despite having not developed the property beyond the government-owned house that was demolished to pave the way for the units that were sold to civil servants.
Garissa Township MP Aden Duale, another member of the committee, described the whole process as a fraud.
“This is serious fraud. You took land that was not yours and got compensated for it,” Mr Duale said.
Land’s rightful owner
“This is a case of the government selling its own land to itself, only that someone else pocketed the money. Mr Magut could have been used as a conduit to enrich some individuals in government,” said Mr Duale.
The committee heard Mr Seyani’s first attempt to get compensation was dismissed by Justice Mumbi Ngugi on February 24, 2012, after the petitioner failed to convince the court that he was the rightful owner of the disputed land.
“In light of my finding that the petitioners’ rights to the suit property have not been established, I make no finding with regard to the alleged violation of their rights under the Constitution,” Justice Ngugi said. “I, therefore, dismiss this petition with costs to the respondents.”
Mr Seyani would later file another petition in court and Justice Mutungi, on March 13, 2015, determined that he was the rightful owners of the property.
Justice Mutungi further ordered that Mr Seyani be compensated Sh100 million with interest from the date of judgment.
The amount was paid in the 2018/19 financial year.
The committee has summoned the State Law Office to explain why the Attorney-General failed to appeal against the judgment despite testifying that the land was government-owned.