How fraudsters took land company through 50-year judicial circus

It all started in 1970, when British settler David Patridge decided to sell his 9,700 acres in Rumuruti in Laikipia. Many things, of course, went awfully wrong with post-independence land transactions, but this has become a classic case of conning.

613 MEMBERS

The new company had a membership of 613 people recruited across the country and they had taken a loan from the Agriculture Finance Corporation (AFC), which was mooted to give credit to local farmers, having inherited the mandate from the Land and Agricultural Bank of Kenya.

Trouble started in 1970 when the company secretary, William Birgen, also a founder-director, failed to pay for his shares and instead started collecting money from the public with a promise that he had land in Rumuruti. A case of massive double allocation – or fraud – was just about to start.

As Birgen carried out this fraud, he had already, on May 5, 1970, resigned as director and company secretary. He prepared share certificates for those who paid him together with his small team of fraudsters, who included John Karumba, Joseph Maingu, Koske Maritim and Kaiga Kamau.

‘NEW OWNERS’

This underhand collection of money went on until December 1978, when they took their members to the Rumuruti farm, ostensibly to settle them as genuine owners. The attempted takeover of Lorien Ranch was well publicised and the genuine owners evicted the Birgen group.

“What they could not attain physically they moved to do juridically,” the Court of Appeal later remarked.

Like cunning foxes, the Birgen group in 1983 decided to move to a Nyeri court and attempt to get the land through judicial battles. This was after they realised that an accurate list of members of the company had been agreed upon before Justice Joseph Masime in October 1982. In October 1991, the Laikipia Land Control Board, under instructions from the provincial administration, granted the consent for subdivision of the farm, unaware that there was a case pending determination in Nyeri.

TWO SIDES

The problem was that the Birgen group had divided itself into applicants and defendants, with Birgen purporting to represent one side while his friends were on the other.

That is how they ended up before Justice Philip Tunoi, who in 1992 recorded a consent order that, the Court of Appeal later noted, “not only purported to settle the membership and control of the company, but also provided for the sub-division of the farm and its allocation to various groups of people comprising the Birgen Group”.

The groups that Tunoi was trying to reconcile were actually made up of fraudsters who had purported to belong to various entities, but in essence were being driven by the single agenda of grabbing the land.

‘GHOSTLY’ COMPANY

One firm, known as Ruguru Farmers Company, had purported in 1978 to deposit money in Lorien’s account with AFC in a bid to gain legitimacy. Ruguru was composed of three other groups described in court as “ghostly and amorphous”, and which “wanted to reap where they did not sow”.

By the time of the consent, the tussle had attracted the attention of the provincial administration in Nyeri, which was helping the original owners get title deeds to their land.

In a bid to block this process, the Birgen group once again went to court and were given orders in 1994 prohibiting the Chief Land Registrar and the District Commissioner in Laikipia from processing or issuing the title deeds to the owners. Interestingly, the illegal group was also given an order of certiorari by Justice Mary Ang’awa that quashed the sub-division of the farm.

A COLLUSION

Using the original documents, in which Birgen was the company secretary and director, the Birgen group was colluding with another fraudster, Samson Serem, who was purporting to sue Birgen and Lorien Ranch. In effect, one fraudster was turning up as a plaintiff and the other as the defendant.

The company complained that unless the illegal orders were set aside, its genuine members would continue to be harassed with court orders fraudulently obtained and be denied their right to quiet possession of their lawfully acquired parcels of land.

Birgen had told the court that he was a paid-up member and shareholder of the company and argued that the 613 members had not paid up; that he had lived on the farm until 1982; and that the matter was res judicata as it had been dispensed with by another court.

MATTER DISMISSED

He, however, died before he could raise this objection, and the matter was taken over by his co-defendant, Kahiga Kamau. It was dismissed by Justice Vitalis Juma.

Land matters, especially when knotted with fraud, can become complex. Kahiga Kamau went up to the Court of Appeal, where he was once again dismissed, with the court holding that technicalities would not override evidence.

But before the case could be heard, another group of time-wasters had emerged under a man named Richard Bunei.

They claimed to be the registered directors of the company and termed the case “vexatious and embarrassing”.

A NON-MEMBER

It later emerged that the 795 people in the Birgen group could as well have been “ghosts” and that the person who had filed the impugned suit was not even a member of the company.

For four decades, various interests had converged and various fictitious directors emerged to lay claim to the expansive farm.

For instance, Ruguru Farmers had claimed to have 120 members while Nyakinyua Group was claiming 300 acres. Another entity known as Lakinya Group wanted 600 acres while the Serem Group claimed to have 150 members. These were the entities that were behind the Tunoi consent, although they had not paid any penny to the original company.

Actually, it was the Birgen group that had divided its fictitious members into separate groups and they were fighting in court over property they did not own. Membership of the company had grown from the original 613 to 2,500 by the time the Tunoi consent was being entered.

NOT SHAREHOLDERS

At the Court of Appeal, the judges held that the Tunoi consent was wrong since the Birgen group were not shareholders.

“They concealed the fact that there were only 613 genuine members of the company who had paid the full purchase price and had been settled on the farm since 1970, being facts they were fully aware of,” said the judges.

It was also found that Birgen had misled his group and the courts that entered the consents that he was a shareholder and director of the company “knowing well that he never was and/or had ceased to be so”.

How the Judiciary was deceived by Birgen in collusion with Samson Malakwen arap Serem is a mystery. Though in court they were purporting to sue each other, they were actually allies in a win-win tussle.

‘MORE EGREGIOUS’

The Court of Appeal found that the fraud committed against the company “was even more egregious than was pleaded and particularised”.

“The Tunoi consent (is) a cynical study in fraudulent conduct on the part of the Birgen Group,” said the judges. “The coram itself was false and misleading and was setting the stage for proceedings detrimental to the company.”

Why Tunoi reached that consent is not clear, but the Court of Appeal blamed it on Birgen and his group.

“This was clearly an attempt to subvert and abuse the judicial process by deploying it as a forum and tool for a most calculated, detailed and vicious scheme of land theft,” it ruled.

Three years ago, the Court of Appeal restored sanity by kicking out the Birgen group after a 40-year court battle.

There are many other cases like this, where owners of properties are taken in circles until they get exhausted. Cry, my beloved country.

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