The court dismissed an appeal lodged by the former county boss that sought to quash judgement by High Court Judge Elijah Obaga that ordered him to compensate businessmen Nayan Patel of Aster Holdings Ltd for seizure of his property.
The 7.5-acre plot, which the former governor occupied for 10 years, is situated on Church Road in Westlands, and is estimated to be worth Sh3.5 billion.
Court of Appeal Judges William Ouko, Fatuma Sichale and Sankale ole Kantai, also ordered Kabogo to pay Mr Patel cost of the suit.
The three judges, in their verdict on December 6, 2019 reaffirmed the High Court’s 2017 determination that Kabogo, through his Carroget Investment Limited, had irregularly acquired the land.
Patel, through lawyer Cohen Amanya, had sued Carroget Investments and listed the City Council of Nairobi (now City County), the Commissioner of Lands, Attorney General and registrar of titles as respondents.
The judges concurred with Obaga that the former governor and State officers working at the defunct City Council of Nairobi and Ministry of Lands had fraudulently registered the land in the name of Carroget Investments Ltd.
“In the first place we reiterate that in an act of impunity, the appellant, with a questionable title forcefully invaded the suit property, evicted the 1st respondent and occupied it for over 10 years. The invasion was unlawful and the taking of possession of a privately-owned property amounted to trespass. The 1st respondent’s efforts to get assistance from the police was futile, compelling him to institute an action for trespass,” the appellate judges ruled.
The judges then listed the factors the High Court judge considered in the award of Sh100 million, which included the appellant’s own valuation of the suit property at Sh1.8 billion in 2013, the fact that the legitimate owner was kept off the property for over 10 years, the size of the suit property, its strategic location and the lost investment opportunities.
Kabogo had appealed against Obaga’s ruling, insisting that he had applied to the City Council in 2007 and was duly allocated the parcel for a 99-year lease.
Under civil appeal case No 82 of 2018, he raised 14 grounds for appeal, among them that he had paid Sh4.5 million for the land, insisting that his was a case of double allocation.
However, the judges after reviewing documents presented in court, condemned Kabogo while terming his land ownership documents as fraud and a clear case of land grabbing.
“From the evidence on record, and what we have said above, this was not a case of double allocation but one of shameless, outright typical Kenyan-style land grabbing, where, the appellant in collusion with some of the officials working for City Council, Commissioner of Lands, registrar of titles and the Attorney General, attempted to alienate private land that already had been alienated,” the judges stated.
Court documents indicate that Caroget directors are Acres & Homes and Esther Njeri Gitau. William Kabogo Gitau, Patrick Gichure Kamau and Andrew Kamau Kabogo are listed as directors of Acres and Homes.
Yesterday, Kabogo insisted he will fight the case at the Supreme Court. “I will fight to highest level of appeal,” he said on phone.
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