DCI wants lawyer out of Sh600m Diani land scam case

The Director of Criminal Investigations wants the court to bar a lawyer from representing five UK nationals charged with Sh600 million fraudulent land sale in Diani, Kwale County. 

The DCI filed an application to stop Adams Muthama from representing Annelise Clark, John Clark, Christine Clark, Hellen Hartley, Richard Hartley and Peter Mutwiwa. 

The UK nationals were charged with conspiracy to defraud James Archer, Joanna Trent and Robert Archer of the said lands. 

In a sworn affidavit, the DCI officer, Kiragu Muthui, told Mombasa Chief Magistrate Alex Ithuku that the lawyer was going to be a state witness in the case. 

“Muthama’s management and disbursement of the said sum, the proceeds of what the prosecution contends was a fraudulent disposition of trust properties, makes the advocate a direct and necessary witness on the question of how the proceeds of the alleged fraud were dealt with,” said Muthui. 

The officer said Muthama personally executed and registered the transfer of plots 1745 and 1743 to Ann Vaughn, who had already died on June 1, 2019, on the basis of backdated transfer documents bearing a forged signature and a fake PIN document in the name of a deceased person. 

Muthui said that Muthama was the chief architect of the fraudulent transaction and the advocate’s knowledge is not incidental or tangential and goes to the very heart of the Prosecution's case. 

“AT the statements of Linda Hamilton Archer, Said Abeid Said, Francis Ndwiga and Guy Spence Elms together with documentary exhibits portray Mr. Muthama as the chief architect of the fraudulent scheme possessing personal and direct knowledge of each of the specific transactions that constitute the offences charged in this matter,” said Muthui. 

The DCI said that no legitimate advocate acting in good faith would register subdivisions of eight restricted titles without first obtaining the court's sanction to lift the restriction. 

Muthui said that the lawyer personally conducted the registration of the eight parallel subdivision titles in July 2018, in circumstances where three mother titles were subject to a restriction registered pursuant to an order of court. 

“Mr. Muthama did so deliberately and with knowledge of the restriction, in an apparent bid to conceal the true ownership of the properties in order to defeat a pending ruling of the Court of Appeal,” said Muthui. 

The DCI said the advocate’s participation in the transaction was not that of a peripheral agent but that of the primary legal actor who caused and effected the fraudulent registration. 

The officer told court that Muthama personally and directly conducted the impugned transfers of the subdivided titles notwithstanding the existing restriction on the mother titles and without the requisite clearance. 

The DCI told the magistrate that the lawyer prepared the sale agreement by which the shares in Baroness Holdings Limited, the offshore vehicle holding the fraudulently transferred properties, were sold to Leonardo Giovandro and Giovandro Leandro Giorgio for sh600,000,000. 

The officer said that Muthama’s own letter dated December 5 2019 to Ruffman Dhanji, indicates an admission that he was aware of the irregularity in the registration and acknowledged that the transfer proceeded without the required clearance certificate. 

“The proceeds passed through his hands. His involvement in this final disposition of the properties is direct, central and financially material. investigations and charges relating to this web of fraudulent and money laundering exercise will still involve participation of Mr. Muthama,” said Muthui. 

The statement of Sarah Ndwiga records that Mr. Muthama personally confirmed that the purpose of the subdivision registrations was to ensure that searches on the properties would not reveal any caution or restriction, thereby concealing the existing court restriction from any prospective purchaser or searcher. This admission, attributed directly to Mr. Muthama, is central to establishing the element of fraudulent intent in the charges. 

The DCI said the lawyer was personally present at and participated in the demolition and eviction at Diani House on the 20th March 2023, the same day the Court of Appeal delivered its ruling against the accused persons. 

The police said that Muthama conduct demonstrates that he possessed advance knowledge of and acted in concert with the accused persons in taking immediate physical steps to defeat the effect of the Court of Appeal's judgment. 

“The affidavit in the perjury proceedings against Annelise Lulu Archer was drawn and filed by Mr. Muthama. He knew the contents of that affidavit to be false, having himself been the architect of the transactions the affidavit sought to conceal. His knowledge and intent in drawing the perjurious affidavit are directly in issue in those proceedings,” said Muthui.