By Collins Wanzallah
The widow of the late Arthur Kinyanjui Magugu has filed a constitutional petition in what is likely to be a landmark case and a test of Kenya’s Constitutional architecture. Court documents seen by The Weekly Vision provide damning evidence filed by Ms. Magugu against Karura Investments Limited, the Chief Lands Registrar, and key government agencies including the Directorate of Criminal Investigation (DCI), Office of Director of Public Prosecutions (ODPP), and Director of Survey.
The widow represented by JM Kariuki & Company Advocates has provided the court with documents to support the petition. The first respondent Karura Investments Limited represented by the firm of Ahmednasir Abdullahi Advocates has insisted that the case is resjudicata and an abuse of the court process, an allegation vehemently denied by Ms Magugu.
She says upon the demise of the family patriarch and prominent Minister in former president Daniel Moi’s government the late Arthur Kinyanjui Magugu, who died on September 15, 2012, the family led by her filed a succession case and in 2016, obtained letters of adminstration. That it was at this stage, that she established that her late husband’s parcel of land had been allegedly stolen by Karura Investments Limited, through forgery of critical documents.
The directors of Karura Investments Limited the firm accused of theft of land are;
1. Sureshchandra Raichand Shah
2. Vipul Babulal Shah
3. Deepak Kantilal Shah
4. Shashikant Jivraj Shah & Ashok Kumar Amritlal Shah
5. Harunani Suleman Abdulshakur
6. Rajnikant J. Shah & Suryakala R. Shah Jivraj Shah
7. Jitendra Kantilal Deuji Shah & Krishna Jitrendra ShahKantilalDeuji Shah
8. Vimal Liladhar Shah
9. Shashikant Jivraj Shah & Shobhana Shashikant Shah Jivraj Shah
10. Narendrakumar Manekchand Shah & Vatsala Narendra Shah Narendra Shah
11. Vidhus Investments Limited
12. Sureshchandra Raichand Shah Minaxshri S. Shah
13. Shah Prasoon Sureshchandra & Hetal Prasoon Shah PrasoonSureshchandra
14. Chhaganlal Depar Shah & Kanchan Chhaganlal Depar Shah
15. Mureshchandra Kanji R Shah
16. Narendrakumar K. Shah & Suryakala N. Shah Kumar Kanji Hemraj Shah
17. Kaushik Liladhar Shah
18. Hasmukhlal Jivraj Dharamshi Shah & Shobhna H. Shah
19. Rughani Investment Limited Liability Partnership
20. Sarit Sobhagayachand Shah
21. Mahesh Maneklal Rughani
22. Estate of Shah Sobhagyachand Vidhu
The late Magugu’s widow moved the court in 2017 through upon her appointment as the administrator of Magugu’s Estate against Karura Investments Limited and others. The said suit was struck out after the court held that the suit was statute barred having been brought to court after the Limitation of Actions 12 years as prescribed by Limitation of Actions Act Section 7.
The case was struck out on a technicality, and that it was not heard on merit as alleged by Magugu’s lawyer. This decision by the said court was challenged in the Court of Appeal, which sided with the impugned decision. This did not deter the widow from approaching the criminal justice system through the Directorate of Criminal Investigation in 2018 as she was unbowed, unfazed, and more determined to recover her land.
The DCI commenced investigations in 2018 to unravel how Magugu’s parcel of land No. 12422/9 measuring 41.13Hectares was subdivided into two parcels, LR.12422/203 and LR.12422/204, and on the same day October 25, 1993, the latter was subdivided in two hours, transferred and registered in the name of Karura Investments Limited. In what appeared as a script from a fiction movie, LR 12422/204 was further subdivided into LR 12422/318 and LR.12422/319 on the same day.
That, cleverly, L.R 12422/318 measuring two Hectares was processed in the name of Magugu, and the bigger portion LR 12422/319 measuring 82 acres was transferred to Karura Investments Limited. Noteworthy, all that happened in approximately two hours on October 25, 1993. The questions raised to the DCI by Margret Magugu were for instance how Karura ended up with a title for LR. NO. 12422/319 without any sale or consideration paid. She asked police to investigate the authenticity of Karura Investments Limited’s claim in its defense to have paid Magugu’s loan of Sh36, 742,880.05 to Stanbic Bank, formerly Gridlays Bank, thereby entitling it to take over the land.
She wanted to know how the consent from the land control board for the sale of L.R No 12422/319 was issued on September 10, 1993, one month before the land was created /registered or issued with the title. Further, she wanted to know whether a Deed Plan could be transferred as happened and whether there was proof of payment by Karura to Stanbic, for a charge of Sh36,742,880.05 taken in favor of Magugu.
Ms Magugu asked police to prove whether Stanbic issued a discharge of charge dated October 25, 1993, and same day had it registered and subdivision carried out on the same day for L.R No.12422/9, and in two hours the subdivision being LR No 12422/204 was equally subdivided into L.R No 12422/318 and LR NO 12422/319 directly registered in the name of Karura Investments Limited, measuring 82 Acres. These questions were never answered by the DCI, but were compounded by new revelations during the investigations, the widow says
It was established that the transfer document used by Karura Investments Limited dated October 25, 1993, was franked. The Ministry of Lands in a letter dated May 8, 2023, addressed to the DCI insisted that in 1993, they used embossment of documents and not franking and added that franking was introduced in 2010, upon amendment of the Stamp Duty Act.
The DCI further established that the signature purportedly of Magugu’s on the alleged transfer document was a forgery. This is followed forensic examination of the signature by three experts at different levels and in intervals.
The DCI, in a cover-up attempt, on July 20, 2023, prepared a report by one John Muinde two days after it had received a damning report by Geoffrey Chania which had declared the alleged Magugu’s signature on the Transfer document a forgery. The DCI has been unable to wrap up investigations 6 years later (to date) despite glaring evidence and recommendations made by the Investigating Officer to charge the Directors of KaruraInvestments Limited with forgery.
The wheels of Criminal justice have ground to a halt, since those recommendations to charge the Directors of Karura. The DCI Boss together with ODPP have been playing cat and mouse game with the file in a brazen attempt to defeat justice for the widow.
The widow has now knocked on the Constitution Division of the High Court door, citing violation of her constitutional rights including right to fair Administrative Action under Article 47 of the constitution, and violation of her right to own land under Article 40 of the constitution. This is per court documents filed in court.
The widow has insisted through her lawyers that the Ministry of Lands by issuing a certificate of title on a forged transfer violated her rights to own land. The widow further claims in her court filings, that the Director of Survey who had earlier, flagged the subdivisions for being irregular violated Article 40 of the Constitution for not acting despite, recommending cancellation of deed plan no. 166400 and 166401 for being irregularly issued.
The widow has further claimed through her lawyer, that failure by the Director of Survey to act as per the letter addressed to the DCI is an abdication of his duty and violation of her constitutional rights. In further evidence, Stanbic Bank in a letter filed in court has indicated that it could not verify the alleged loan payment as claimed by Karura Investment Limited.
In an affidavit dated February 1, 2016, by an advocate claiming to have acted for both parties in the disputed transaction, one Hasmukhrai Manilal Parekh claimed to have been instructed to preside over the sale by Arthur Kinyanjui Magugu of L.R No 12422/319 which was to be sold to Karura Investments Ltd.
Magugu was never registered as the proprietor or owner of the said LR No 12422/319 hence he could not offer it for sale, since he was registered proprietor of the main title and not the subdivision, which was registered directly in the name of Karura upon the disputed subdivision, the court has been told. Ms. Magugu says failure by the DCI to act on the glaring evidence by prosecuting the Directors of Karura Investments Limited is in Violation of Articles 10, 27, 47, and 244 of the Constitution.
