Uchumi, Boer trekkers and their ‘Wild West’ plot in Roysambu

Daily Nation (Kenya) - - NATIONAL NEWS -

The men, women and events that shaped so­ci­ety

The 1933 mur­der of colo­nial mav­er­ick Henry Tarl­ton is one of those for­got­ten episodes in Kenya’s colo­nial his­tory. So for­got­ten that when his name fea­tured in a re­cent court case in­volv­ing a Sh2 bil­lion land along Thika Su­per­high­way — which Uchumi Su­per­mar­ket says it owns — no­body took note.

Of all colo­nial bul­lies – and they were many - Tar­ton stood out. He not only in­tim­i­dated the lo­cals but also the whites who dared to hunt wildlife in his 4,443 acres Roysambu Es­tate in Nairobi’s Kasarani. He even tried to bully the colo­nial govern­ment and wrote var­i­ous scathing at­tacks in the East African Stan­dard.

The re­main­ing va­cant por­tion of his land can be seen be­tween Sa­fari Park Ho­tel and Thika Road Mall (TRM) and the dam­aged perime­tre wall is the best in­di­ca­tor of the vi­cious war on the own­er­ship of this land. We shall come back to that later for this is not only the his­tory of the plot that gave Nairobi’s Roysambu its name, but also a peep into what is hap­pen­ing when colo­nial land leases are about to ex­pire.

Henry and his brother Les­lie were part of the group of Bo­ers who had trekked from South Africa in early 1900 hop­ing to es­cape the Bri­tish dom­i­na­tion in Transvaal and Orange Free State. Most of these sol­diers set­tled in El­doret with their wag­ons and even to­day, the town has the sig­na­ture Afrikaner build­ings, a church and ceme­tery.

Look­ing back, Tarl­ton was a pioneer con­ser­va­tion­ist. And that was be­fore he was killed while fish­ing in Nairobi’s River Ruaraka (Yes! It had plenty of trout fish) on Novem­ber 20, 1933. The mur­der was blamed on a “lo­cal na­tive” though Tarl­ton had stepped on many toes in the colony.

Yet, two weeks ago – the High Court in Nairobi – made a rul­ing that gave Uchumi Su­per­mar­ket own­er­ship of Tarl­ton’s for­mer land in Kasarani – part of what was known as Roysambu Es­tate.

On this Roysambu farm, Tarl­ton kept dif­fer­ent types of an­i­mals in what was Kenya’s first zoo. He hated hunt­ing though his brother Les­lie was one of East Africa’s most prom­i­nent big-game hunters. Ac­tu­ally, his brother fea­tured promi­nently in the hunt­ing sa­faris of for­mer US Pres­i­dent Theodore Roo­sevelt whose hunt­ing trips in Sir Northrup Mcmil­lan’s Juja Farm — on be­half of the Smith­so­nian Mu­seum, the world’s largest — were epic. In 1909, the Smith­so­nian In­sti­tu­tion had com­mis­sioned Roo­sevelt to col­lect spec­i­mens of African wildlife for the Na­tional Mu­seum and that is how Les­lie was brought into the pic­ture.

That hunt­ing party — which was crit­i­cised by the New York Times for butcher­ing 512 an­i­mals — is still billed as Kenya’s big­gest sin­gle hunt­ing ex­pe­di­tion and which not only trig­gered grand scale poach­ing but also saw many other im­i­ta­tors look for mu­seum spon­sor­ships to col­lect spec­i­mens. But be­sides earn­ing some noble men­tions in Roo­sevelt’s book African Game Trails: The Clas­sic Big Game Sa­fari, Les­lie is to­day cel­e­brated as the founder of the first lux­ury tented sa­fari in Africa. In 1904, to­gether with his brother Henry and a friend Vic­tor New­land, he had set up a com­pany in Nairobi known as New­land, Tarl­ton & Co a pioneer in equip­ping Big Game hunt­ing par­ties and which to­day is a known brand name in the world of ex­otic travel run by Don­ald Young Sa­faris.

By then, Nairobi was not even a town. It was tin shack and the com­pany was started in one of those early tin sheds. Les­lie or­gan­ised spe­cial sa­faris

The most no­table of those sa­faris was when he hosted the phi­lan­der­ing Prince of Wales, later King Ed­ward VIII – a man who would later ab­di­cate the throne in or­der to marry a twice-di­vorced Amer­i­can woman, 39-year-old Bessie Simp­son. (Simp­son later dropped the name Bessie say­ing that too many UK farm­ers had named their cows ‘Bessie’ and it now sounded too much like a cow!)

What we to­day know of this Tarl­ton fam­ily is that they had moved from Aus­tralia to South Africa in 1893 hop­ing his eldest son would find con­ducive place for his tu­ber­cu­lo­sis. Back to the Roysambu prop­erty, Tarl­ton sold it in Fe­bru­ary 1930 to Cap­tain H.V. Briscoe, a ma­rine su­per­in­ten­dent who used to work for the East African Rail­way and Har­bours. The records show that by the time Briscoe bought part of this land, it had been sub­di­vided into sev­eral por­tions of 200 acres and later on into 20 acres.

One of the re­main­ing por­tion is the Sh2 bil­lion land that now front Thika Su­per­high­way and which is the only re­minder of the vir­gin land that the Tarl­tons were given by James Hays Sadler, then the Com­mis­sioner for East African Pro­tec­torate – as Kenya was then known.

But this rich his­tory may have es­caped later own­ers — in­clud­ing Uchumi Su­per­mar­ket who might not be aware that they now own a prop­erty whose colo­nial his­tory has with­ered with time — and per­haps the for­got­ten nexus be­tween Kenya and the Wild West.

Af­ter the Tarl­tons sold this prop­erty, it changed hands sev­eral times and ended up with a Mr Mayer Ja­cob Sa­muels who died in­tes­tate on De­cem­ber 12, 1974. That is how a brother of his “full-blood brother” Raphael Ja­cob and Meshu­mor Ja­cob, iden­ti­fied as a de­ceased’s brother of the “half-blood brother” filed for the grant of let­ters of ad­min­is­tra­tion in 1976.

A re­cent re­port pre­pared by the Na­tional Land Com­mis­sion on this land says “since the de­ceased was Jewish, it is not known whether let­ters were granted be­cause un­der the law of in­her­i­tance to the Jewish Com­mu­nity of Aden, only the sur­viv­ing broth­ers can in­herit the de­ceased’s (prop­erty). The de­ceased had a brother and there­fore an heir who can in­herit the prop­erty.”

But it ap­pears no trans­fer took place since in 1985, the com­mis­sioner of lands James Ray­mond Njenga sought to com­pul­so­rily ac­quire this por­tion mea­sur­ing 16 acres “for public pur­pose”. It was sup­posed to be used by the mil­i­tary to set up a Kenya Army School – but the mil­i­tary found it un­suit­able since it was near res­i­den­tial ar­eas.

But in one of his protest let­ters to the Com­mis­sioner of Lands, Mr Meshu­mor com­plained the gazette no­tice was is­sued with­out the cour­tesy of in­form­ing him and that he did not be­lieve the land was be­ing taken for public pur­pose. By this time, the land grab­bing spree had started in Nairobi.

An in­quiry on the ac­qui­si­tion was done in Fe­bru­ary 1986 and Meshu­mor asked for Sh25 mil­lion as com­pen­sa­tion. The chief govern­ment val­uer put the land at Sh3.5 mil­lion which Meshu­mor re­jected and went

In 2004, when Uchumi was strug­gling to re­turn from the dead, it de­cided to sell this plot and in­vited in­ter­ested bid­ders. A Nairobi com­pany, Sidhi In­vest­ments, emerged.”

to court. The court en­hanced the value to Sh25 mil­lion and the govern­ment ap­pealed this of­fer. In­ter­est­ingly, the case has never pro­gressed beyond there and af­ter ten years, in Fe­bru­ary 1997, the Court of Ap­peal stood over the mat­ter for the par­ties to ne­go­ti­ate out of court.

But was some­body try­ing to force Meshu­mor take an of­fer? We don’t know, yet.

What we know is that in a let­ter dated Jan­uary 26, 1987 the Per­ma­nent sec­re­tary in the Depart­ment of De­fence (DOD) wrote to the Com­mis­sioner of Lands say­ing that a DOD team car­ried a ground visit and found it un­suit­able for the in­tended pur­pose un­less the sur­round­ing four prop­er­ties were ac­quired too.

Two months later, Ma­jor Gen­eral Jack­son Mun­yao wrote to the Com­mis­sioner of Lands ask­ing him to dis­re­gard the let­ter that sought the land in Roysambu and await un­til they make fur­ther con­tacts on the is­sue. No con­tacts were made and no pay­ments were done to Meshu­mor, ac­cord­ing to the Na­tional Land Com­mis­sion doc­u­ment “due to fi­nan­cial hard­ship”.

Legally, if the mil­i­tary didn’t re­quire that land, it should have re­verted back to the owner. But it didn’t. It now ap­pears that there was a catch af­ter all. The land LR 5875/2 had a 99-year lease and it was set to ex­pire in 2003 and re­vert back to the govern­ment.

When NLC’S deputy di­rec­tor for in­ves­ti­ga­tions, An­tipas Nyan­jwa tried to dig about the own­er­ship of plot LR 5875/2 in April 2015, he found some in­ter­est­ing find­ings: “Cur­rent search at the registry shows that no records ex­ist on it in the sys­tems…i en­deav­ored to get the cor­re­spon­dence file in the records of­fice but they have failed to trace the file and our as­sump­tion is that it has been stolen, hid­den or ma­li­ciously de­stroyed.”

So who owns this land? Meshu­mor had in 1985 tried to have the lease ex­tended and real­tors Tysons Habenga had writ­ten to the Com­mis­sioner of Lands re­quest­ing for an ex­ten­sion. It is only when his lawyers, Rob­son, Har­ris and Com­pany tried to get an ex­ten­sion that Miss Akinyi Va­lerie Onyango wrote back say­ing that the Com­mis­sioner had de­clined.

“Tech­ni­cally, the land then re­verted back to the govern­ment and by ex­ten­sion of the new con­sti­tu­tion 2010 to the County govern­ment of Nairobi,” said the NLC re­port.

Bank charge

Two weeks ago, the High Court de­ter­mined that Uchumi Su­per­mar­ket is the ben­e­fi­cial owner of this land, through their wholly-owned Kasarani Mall Lim­ited.

But there is more to it than meets the eye.

A com­pany by the name So­lio Con­struc­tions Com­pany – and we still don’t know who owned it – man­aged to get this plot and had a ti­tle reg­is­tered in May 1992 af­ter the DOD said it was not in­ter­ested. So­lio had gone ahead to charge the prop­erty to Bar­clays Bank on Ocober 1993 some­thing that has in­trigued the NLC. “How could it have been charged to the Bank be­fore the ti­tle was reg­is­tered, stamp duty paid and signed?” asks the NLC re­port.

So­lio got a sec­ond ti­tle for the same prop­erty and this was reg­is­tered in Jan­uary 2001 which means that this prop­erty now had two ti­tles — even be­fore the orig­i­nal lease had ex­pired. The con­clu­sion by NLC was that these ti­tles were “out­right forgery” and that Uchumi “be­came stake­hold­ers through this fraud­u­lent trans­fer.”

When the mat­ter came be­fore Lady Jus­tice Lucy Gacheru, the Di­rec­tor of Public Pros­e­cu­tion told the court that Kasarani Mall held a gen­uine ti­tle and that there was “no ev­i­dence of any col­lu­sion or con­spir­acy be­tween the com­pany and land of­fi­cials dur­ing the al­lo­ca­tion of the land to So­lio Con­struc­tion…”

“The Plain­tiff (Uchumi) was a will­ing buyer who bought the suit land from a will­ing seller whom the Di­rec­tor of Public Pros­e­cu­tion has con­cluded was validly is­sued with the Ti­tle Deed. There­fore this court finds that the Plain­tiff’s ti­tle to the suit prop­erty is valid,” said Jus­tice Gacheru.

And with that, Uchumi has ended up with a Sh2 bil­lion land – which they in­tend to sell (by the way) in or­der to off­set the many debts they owe. And this is where things get murky.

In 2004, when Uchumi was strug­gling to re­turn from the dead, it de­cided to sell this plot and in­vited in­ter­ested bid­ders. A Nairobi com­pany, Sidhi In­vest­ments, emerged the high­est bid­der with a price of Sh186 mil­lion. But the govern­ment placed a caveat on the land af­ter there was fear that the di­rec­tors were in­volved in as­set strip­ping.

As a re­sult, Sidhi went to court to com­pel Uchumi to take its cheque de­posit and the court ruled there was a gen­uine con­tract be­tween the two. That was in Oc­to­ber 2007 and there has been push to have the mat­ter set­tled out of court.

For sev­eral years, the only ev­i­dence of the tus­sle over own­er­ship is the now-you-see-it now-you-don’t stone perime­tre on the plot. Some squat­ters have also been claim­ing the same and the fate of Meshu­mor in all these is not known.

It is like a Wild West movie and the saga is not yet over.

jka­mau@ke.na­tion­media.com Twit­ter: @johnka­mau1

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