The dispute surrounding ownership of the properties known as L.R NO. 2327/10 and 2327/117 situate in Karen has widely been reported and circulated both in print and social media.
The adverse claim of ownership the properties was initially handled by the Officer Commanding Station (OCS), Hardy Police Station (Hardy). The origin was a complaint raised by Agnes Kagure who was at the material time preparing the ground following approval by the then County Council of Nairobi to put up a wall around the properties.
Following Kagure’s complaint, the then OCS, Hardy directed all parties with competing interests to present their original ownership documents to enable him take informed directions on the dispute and investigate the matter.
Agnes took the original documents of ownership in her possession to the OCS, Hardy, where the same were inspected by the police who later lodged a search at lands office. The official search results were precise in confirming that one Agnes Kagure Kariuki was the registered owner of the properties.
An advocate by the name Guy Spencer Elms purported to be the administrator of the Estate of one Roger Bryan Robson and to have the original title documents of ownership of the properties. According to Kagure, when put to task, Elms could not produce a single document to the OCS, Hardy for purposes of aiding the investigation.
The OCS, Hardy therefore directed both parties to appear at the Ministry of Lands and Physical Planning together with documents to support their separate claims.
Agnes says she dutifully complied with the instructions and appeared before the then land registrar, a Mr. Mungai, but on his part, Elms failed to appear and or present any ownership documents despite him laying claim on the properties.
Instead and according to Agnes he resorted to maligning her name in the local daily and print media upon realizing that “he held nothing other than wild and unfounded allegations that were most likely a figment of his own deluded imagination”.
He further “proceeded to hire third parties and goons to attack me in the social media including twitter and Facebook while being well aware of the fact that he could not produce ownership documents over the properties, which documents he curiously continued to allege were in his firm possession”.
It was at this stage that she sought to protect her interests by following due process as laid down in law. “ I wrote a complaint letter to the Director of Criminal Investigation (DCI) on 21st January, 2015 detailing my woes at the hands of Mr. Elms and requesting them to commence extensive investigations into the now wily advocate’s nefarious actions with a view to bringing him, and anyone else found culpable of criminal malfeasance to book”.
She continues that on gaining knowledge of the impending DCI investigations, Mr. Elms filed ELC Case No. 80 of 2015, where he relied on a “supposed power of attorney and will over the estate of the said Roger Bryan Robson which documents were clearly forgeries, tellingly in the documents he filed to support his case in the courts he uses a copy of my original title ”.
And just like in the lands registry and OCS, Hardy before him, the DCI Director thereafter also sought to have all parties avail their respective original ownership documents for purposes of verification. “Once again, Mr. Elms conspicuously failed to tender a single leaf of paper to support his incredulous allegations” insists Kagure.
“Yet this is the same Guy Spencer Elms who penned down in black and white a statement to the DCI Director that he is in possession of all of the original title documents, despite having never made good on several lawful directions to produce the same”. She was referring to the letter Mr. Elms wrote to the Director of Criminal Investigations dated 10th February 2015.
Upon investigations ” the DCI Director found that Mr. Elms was in fact in possession of a forged power of attorney and will to the said deceased Mr. Robson and recommended that Mr. Elms be charged with various offences. ”In his now characteristic manner, and upon gaining wind of the same, the conniving advocate quickly moved to the High Court to challenge the decision to prosecute him by filing Judicial Review proceedings which were eventually heard and dismissed by Justice Odunga”. Mr. Elms was subsequently charged with perpetrating criminal offences in respect of the ownership of the properties. He even wrote to the National Land Commission to carry out investigations into what is essentially private land and even managed to get the Commission to giving him a report in his favour. When Kagure complained about the report which was prepared without affording her an opportunity to respond to the allegations against her, the NLC promptly withdrew the said report.
Agnes claims that on realizing that “things were now tough, he sought to settle the matter out of Court”, and he prepared a Deed of Settlement in exchange for Kagure withdrawing her complaint.
She says that she rejected the proposed settlement and was categorical that the law had to take its course and that the judicial system should do justice so as to safeguard her property rights which Mr. Elms had so viciously sought to deprive her.
She insists that she had lawfully bought the properties from the deceased and payment of the purchase price had been painstakingly made in four installments and all original documents of ownership were handed over to her.
And contrary to assertions that she grabbed the property after his death Kagure states that she in fact had been commissioned by the deceased to deal with the pending City Council rate complaint Number 12 of 2009 which she finally concluded on 5th April 2017.
The properties were and still are duly registered at the Central Lands Registry in Nairobi under the regime of free hold title in the names of Agnes Kagure Kariuki as an indefeasible and registered owner. She is also listed in the County of Nairobi government records as a rateable owner of the property.
The subject transaction was done above board in all respects as all necessary approvals and payments were done in accordance with the law and investigations by various government agencies, including the DCI Director aforesaid, have vindicated her contentions.
She adds that the dispute between the two parties has been examined by officers who have sworn affidavits in support of the transaction with the late Rodger Bryan Robson and have in fact appeared in court to support their said statements and opinions.
She explains that on or about 1st September, 2011, Rodger Bryan Robson as the vendor and herself as the purchaser, vide a written Agreement for Sale and Conveyance, agreed to deal and conclude the transaction at Kenya shillings one hundred million which she paid in instalments.
The agreement for sale and the conveyance were executed by the parties and the transaction was a closed without complication.
She says that due to his advanced age, she had graciously accommodated the late . Robson’s request to remain in occupation of part of the properties for a brief period of time before relocating to his other premises in Mombasa. The request by the deceased was allowed in good faith she says.
Rodger Bryan Robson would shortly afterwards succumb to his ill health and died on 8th August, 2012.
The original title documents of the now disputed property were forwarded by a letter dated 15th August, 1995 from M.A Khan Advocate to Ramnik Shah Advocate. The firm of M. A Khan Advocate had instructions from Habib Bank to forward the documents upon discharge of an encumbrance (charge) that at the time was registered over the properties.
Kagure asserts that “the patently falsified Grant of Probate of Written Will supposedly issued on 30th October, 2013 was obtained pursuant to material non-disclosure by Guy Spencer Elms and as a result is in now the subject of criminal and civil proceedings against him in court” The probate excluded Kagure’s property following a court order striking it out of the properties subject to probate.
During the last week of November, 2012 Mr. Elms wrote to Habib bank requesting for the original title documents over the properties. In the same letter, he refers to various letters in pursuit of the title. On this Kagure has this to say: “It is surprising that an advocate who claims to have a will, which ostensibly must give details of the deceased’s property, decides to fish around from various banks in order to get bank accounts of the deceased. It would be reasonable to presume that any will, including that which Elms claimed to posses, would contain all of the information regarding the Administrator’s mandate which he supposedly sought to demonstrate vide a letter dated 17th January, 2013”.
Kagure also notes that when the DCIO asked Elms to avail the original documents in regard to the title and power of attorney, in support of his complaints as contained in a letter dated 6th March, 2015, he was completely unable to avail the original documents to the DCI Director in order to advance his claims and in order to have the same examined by the authorities”. Instead he gave a copy of Kagure’s original title.
She claims that Mr. Elms has totally failed to produce an original will as instructed by the DCI Director in order to support his case “and one would wonder as to the motive behind such contradictory actions or inactions by an advocate”. To further confound his “inexplicable behavior”, continues Kagure, Mr.Elms decided to advise the Director of Criminal Investigations to carry out investigations, and went further to suggest that the solution would be to “follow the money trail.” According to him, the money trail would definitely lead to the bona fide, true and legal purchaser of the property. This, could only have been a ploy to draw attention away from himself.
His complaint was lodged vide a letter dated 15th June, 2015 in protest of the conduct of investigations and in which the writer claims to have the original documents of the title in question. He states at paragraph 3 of the letter: “I declined their request vide a letter dated 19th March, 2015 as in my opinion, there were other elements of fraud committed by the purported owner Agnes Kagure Kariuki, and the original title does not have to be forensically examined to establish the said elements of fraud. Furthermore, I was apprehensive that if I surrendered the original title of the properties to the CID, it would ‘mysteriously’ disappear”.
On the 28th of January, 2015 Mr. Elms also wrote to the County Government of Lands and the Chief Land Registrar again confirming that he was holding original documents to the properties he was also writing to the deceased’s bank(s) in search of the same document which he claimed to possess.
“Why would an Advocate of as many years standing as Mr. Elms, and who supposedly swore an oath to uphold the truth and the law, conduct himself in such an dishonorable and amateurish manner?” asks Kagure.
On 6th March, 2015 the DCI Director directed Kagure to submit the following documents for investigations:
Original title documents over the properties;
Sale Agreement between her and the deceased vendor; and
Purchase price payment acknowledgements.
Once again, she says she dutifully submitted all of the documents as requested and the DCI proceeded to conclude its investigations with the conclusion that she was the bona fide registered owner of the properties having been in possession of valid ownership documents. She remains in occupation of the properties to date.
“We have a proper and functional legal system that should be left to independently adjudicate on these matters and use of media for purposes of smear campaigns will not take away his culpability” says Kagure. who sees the current efforts to tarnish her name as being part of a campaign to prevent her from being considered as the most deserving candidate for Nairobi Deputy Governor.