P.O. BOX 40587
3rd February 2006
The Attorney General
P.O. Box 40112
Re: CMCCRC 2157/03 TRAGIC TURN: MR. KERIAKO TOBIKO ; DEPUTY PUBLIC PROSECUTOR
We are the majority shareholders of Olkiombo Limited which owns a Tourist Lodge (the Lodge) in Maasai Mara National Reserve (the Reserve) grabbed in circumstances stated as fraudulent by Commissioner of Lands in letter No. 224086 of 6.10.00 (A). Olkiombo’s ownership is by Grant No.4453 of 19.1.90 (B) accepted in HCCC. No 5014 of 1990 (C).
Land Reference No. 13325 was granted to us through a lawful process of setting apart the land. The law says on subsequent adjudication of any such area, the person for whose use and occupation it was set apart must be recorded as owner of the same.
The lodge was fraudulently grabbed as was some 4000 acres of the Reserve (the grabbed land) without any attempt to adjudicate either the grabbed land or the lodge area. A resolution of County Council (Council) dated 12.7. 05 (D) shows the grabbed land is 9 kilometres inside the Reserve and is within Lodge’s exclusivity area.
The grabber is Kunini Ole Ntutu (Ntutu), at the time Treasurer to Council and brother of Hon. Ole Ntutu Assistant Minister. (MP Brother). The Council declined Ntutu demands in a letter No NCC/CONF/G/R/VOL.III/134 of 15.9. 00 (E). On 9. 5. 01 the Head of the Civil Service instructed the Attorney General to ensure the grabbed land and lodge was returned. Ntutu and a Land Registrar were charged with fraud and forgery.
Though Attorney General took over the prosecution we must complain the office of the Director of Public Prosecution (DPP) has compromised the prosecution. We refer to an incident recently before the Chief Magistrate Court where a State Counsel stopped the prosecution before seven crucial witnesses have testified.
The witnesses are investigation officer Mr. Tanki, Mr. Onyango (whose signature was forged) but absence excused to testify in January 2006 on return from America. Mr. Thiongo an officer who was in the District Adjudication Department who only forwarded Land Adjudication records for parcels 1---154 without adjudication record for the grabbed land parcel NO.NAROK/CIS MARA/ TALEK/155 and gave evidence in Chief and was due for cross examination when case was closed allegedly for lack of witnesses and yet Thiongo had been bonded to attend court on that day.
The other witness is Mr. Tipapa Ole Sayialel to testify that the Land adjudication Committee chairman perjured by falsely stating the father of Ntutu was a member of the Ranch. The Chairman’s perjured statement was recorded by an advocate who was employed by the Director of Public Prosecution’s private chambers.
Two police witnesses and the Registrar of Group Representatives (the latter to produce the Group Register of Members to show Ole Ntutu’s father was not a member) failed to be called. You may see the Department of Public Prosecutions was hell bent to exclude any evidence which was favourable to the prosecution.
We see this as a move by Mr. Keriako Tobiko the Director of Public Prosecutions (DPP) to bail out his client Ntutu. The (DPP) acted for Ntutu and his company Ilngina Contractors Ltd in a transaction which involved illegal excision and registration of Mau Forest Trust Land (Forest Land).
The Forest Land parcel is No. NAROK/CIS MARA/OLOLULUNGA/9470 comprising 1361.70 hectares. Transferred by Ntutu on 13.7.99 (F) to his company Ilngina Contractors Limited owned by him, his wife and mother search from the Registrar of Companies dated 23.12. 05 (G).
Title No. 9470 was subdivided into parcels No.9678 to 9681-search dated 7.9.99 (H).
DPP while in private practice, acted for Ntutu and his company in connection with subdivision No. NAROK/CIS MARA/OLOLULUNGA/9678 and wrote to the Council on 15.9.99 which replied by letter No. NCC/LM/VOL.XVII/136 24.9.99 (I). DPP inquired if parcel No.9678 (J) formed part of the Forest Land.
Though the Council seems to say it is not, subsequent investigations showed this was a cover up to which regrettably the DPP was deeply involved. The grabbed land of the Reserve was registered in circumstances similar to registration of parcel NAROK/CIS MARA/ OLOLULUNGA/9470 of the Forest Land.
The Council by letter No.NCC/CONF/L/MVOL.1/152 of 11.9.01, (K) said parcel No.9470 out of which parcel No.9678 was curved from is part of the Forest Land. The Report of the Commission on Illegal/Irregular Allocation of Public Land also confirms this blatant fraud. The DPP and Ntutu knew that no doubt.
Mr. Gathenji had in our presence warned the prosecuting counsel not to prosecute the case and obedience surfaced in Court when Mwangi was castigated for not taking the prosecution seriously. The obedience to Gathenji culminated in the abrupt closure of the prosecution case.
DPP is very close to Ntutu, in the year 2001 DPP went along with him, to the rural home of Mr. Justice Ole Keiwua but found him away. While DPP was admitted at the MP Shah Hospital, the Judge visited him, and Ntutu arrived. DPP attempted to introduce the matter of the grabbed Land. The Judge refused to be drawn into the matter and left.
While at the Stanley Hotel, DPP informed Judge; Ntutu was willing to share the grabbed land but Judge retorted the land did not belong to Ntutu but to the public. DPP said the Council can be twisted to surrender the grabbed land. Judge declined the overtures.
On learning of his suspension, the Judge who was in Dar-es-Salaam then, telephoned DPP asked if DPP and Ntutu were behind the lies in the newspapers concerning the Judge. We see the Judge being punished for refusing to join the conspirators. We know matter is in court but we are provoked by conduct of your DPP to say this to avert miscarriage of justice.
DPP confessed he was aware Ntutu sent a memorandum to the Ringera Committee. DPP disclosed on announcement of suspension Ntutu and MP Brother gleefully trooped to his office. DPP warned Judge unless “Ntutu land issue” (meaning the grabbed land) was sorted out it will continue to trouble Judge.
Judge, while in Arusha met a journalist attached to the Rwanda Tribunal who said DPP passed the brief to Kilukumi on discovery of Judge Interest in the grabbed land. That enabled DPP operate behind the scenes as architect of the scam and helped fabricate lies sent to the Ringera Committee.
Kitilai Ole Ntutu knows of DPP involvement that he says DPP has always been calling the shots. The efforts by DPP and Ntutu against the Judge are to deter Judge from pursuing the public right to the grabbed land and Lodge revenue.
DPP hails from Kajiado and does not care if Reserve disintegrates so long as part of it goes to him and Ntutu. Councillor Saoli overheard nominated Councillor Salau Ole Karkar discuss DPP share in the grabbed land and lodge. Karkar says Judge has no chance. DPP is in charge.
Time came to destroy evidence in the criminal case. Original adjudication record was sold by retired Chief Inspector Wafula to Ntutu. The file is on your desk for direction to prosecute. One Saitoti Ole Kiok, a confidant of Ntutu confided the fact of purchase to one Tobiko Ole Kiok.
DPP with Ntutu and the MP Brother (MP Brother), met at Silver Spring Hotel Nairobi, with then Ministers Murungaru and Kiraitu Murungi. DPP’s take was the MP Brother supports the Yes team for the new constitution and the criminal case will be terminated.
Ntutu says DPP instructed Mwangi, to warn witnesses not to attend court. We are aware you intervened on our complaint that the prosecution was being botched. But the application for adjournment was later declined. Ruling is on 10th March. We urge that in view of these serious short comings the only option is for a nolle Prosque to be entered in order that the truth being suppressed come out.
The case should begin afresh and be prosecuted by one not under DPP whose interest clash with the interest of justice. The costs can be discussed as evidence show it is Government officials that continue to be susceptible to manipulability by DPP and Ntutu.
Or would Government pay colossal compensation and damages for the grabbed land to a public that earns developmental and employment revenue from it? Or will it also pay compensation and damages for a going concern of an expensive Lodge? What a waste?
Losing a portion of the Reserve for official grand corruption has its local and International politics and ramifications. We as owners of the grabbed land will demand the Reserve’s adjudication and not leave it to a few powerful and strategically placed like DPP. The tourism industry will not countenance corruption making nonsense its Policy.
The nolle Prosque will meet the ends of justice in view of Government’s assurances to punish grabbers of public land. Why is Ntutu an exception? Is it due to DPP and some names of two sons of some of the most powerful in the land which Ntutu flashes out to frighten us? May be the prosecution was being botched on their account also?
With a ruling of a manipulated trial, with the most powerful prosecutor at his disposal and two sons of the most powerful in the land and MP brother to ward off law enforcement agencies Ntutu would, as before invade the Reserve. Letters on previous invasion are attached. If the land is his why Ntutu is always in search of the powerful? He is guilty and afraid.
Neither absence of a nolle Prosque nor pending civil cases are an option. The civil courts are not fool proof to manipulation and have been manipulated before. That, we are in court unmaking past manipulations says a lot of our system of justice. This criminal case ruling will be used to give a boost to manipulation in the civil courts.
Ntutu says DPP will ensure he takes the grabbed land and Lodge irrespective of his guilt. We do not wish to be forced by manipulation of the law to take it into our hands. But DPP must stop making Government complicit in illegalities he engineered in private practice? May action be taken against Inspector Wafula and Ntutu for destroying evidence? Wafula in his statement says one investigator has Ntutu cell phone number and is always in communication! May also the conduct of Mwangi be investigated? Finally this is an exceptional situation where a nolle is the only way out of this grave injustice.
Directors OLKIOMBO LIMITED.
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