The case of Adrian Radcliffe vs Kena Properties Ltd & Others is a curious one to watch being a tussle between an innocent purchaser for value (Kena Properties Ltd) of 5.7 Acre Plot of Land in Karen and a squatter expatriate (Adrian Radcliffe) who had lived on the land for 33 years without paying rent (except rent deposit paid in August 1989) and whose adverse possession claim was dismissed by Court in 2011.
Contrary to the misleading media and blog reports, a perusal of the Court File confirms that Mr. Adrian Radcliffe and Family have not been reinstated on the land. The stay of execution of their orders obtained on 10th March 2022 was extended on Thursday 24th March, 2022 and the matter is set for mention on Monday 4th April 2022 to confirm if all parties have filed submissions on the stay application.
Why Mr. Adrian Radcliffe, a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who was earning hefty House Allowance), defaulted in paying rent for 33 years on the prime plot of land in Karen, while living large and taking his kids to most expensive schools in Kenya is a conundrum. No question a local Kenyan could never have gotten away with such selfish impunity.
But Mr. Adrian Radcliffe is not satisfied with not paying rent all his adult life. He also wants to ride on the fact that he had gotten away with living rent-free as a tenant on the prime 5.7 Acre Land for 33 years to become the owner of the land. But the court stopped him on his tracks in February 2011 finding that he was a mere tenant having acknowledged the land owner and his estate agent on 31st July 1997.
Indeed, the fact that Mr. Adrian Radcliffe is not the owner of the land in question and was a mere tenant has been res judicata (settled) since 28th February 2011 when the High Court dismissed his adverse possession claim filed on 20th December 2005. Justice Kalpana Rawal (as she then was) reached the decision after finding that Mr. Adrian Radcliffe had blatantly lied in his pleadings. (see the Judgment).
The High Court concluded that: “His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”
In other words, Mr. Adrian Radcliffe in his pleadings of 2005 told the court the owner of the land could not possibly be alive. But in 2022, Mr. Adrian Radcliffe pleads that the owner of the land died in 2012. So Mr. Adrian Radcliffe lied to the Court that the owner of the land was dead knowing he was alive to grab his property even after he let him stay on it for over a decade while defaulting in rent payments?
The upshot of the 28th February 2011 High Court Judgment dismissing Mr. Adrian Radcliffe adverse possession claim is that he cannot possibly claim to be owner of the land in 2022 (as 12 years have not lapsed since 2011 when the land was found to belong to the original owner). At the same time, he cannot insist on continuing to stay in the land without paying rent against the wishes of the owners of the land.
Mr. Radcliffe admits that he did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land. In fact, on Thursday 3rd March 2011, Mr. Radcliffe instructed a Senior Lawyer in a Leading Nairobi Law Firm to engage the lawyers of the owner of the land who had already sued him to recover the unpaid rent from 1989 to 2011 and the cost of the adverse possession suit.
The claims of Mr. Adrian Radcliffe on Citizen TV that the property was handed to him by a friend who died and they had engaged the Senior Lawyer to assist in property transfer are blatant lies judging from the information gleaned from his court pleadings . It will be very hard for Mr. Adrian Radcliffe to sustain his case especially when the Court finds the extent of his material non-disclosure and falsehoods.
After the High Court decision, on 24th March 2011, the Advocates of the Owner of the land demanded that Mr. Adrian Radcliffe unequivocally accepts the ownership of the land by their client and lift the caveat over the land to be entitled to right of first refusal to purchase the property. On 31st March 2011, Mr. Adrian Radcliffe instructed the Senior Lawyer to write to them agreeing to their terms.
On the same day, Mr. Adrian Radcliffe also signed the withdrawal of his Caveat on the land and left it with the Senior Lawyer to forward to the Land Owner’s Law Firm. Afterwards, the Advocates of the Owner forwarded Valuation of the property as the basis for discussions regarding the sale of the property to Mr. Radcliffe. On 27th April 2011, the Senior Lawyer wrote to Mr. Radcliffe asking for his instructions.
On 28th April 2011, Mr. Radcliffe responded vide a letter dated same day expressly stating that he was unable to take up the offer of first refusal to purchase within the time frame stipulated by the original owner’s advocates for lack of means to purchase the land. The Senior Lawyer promptly communicated this position to the Advocates of the Original Land Owner vide a letter dated 29th April 2011.
Further, Mr. Adrian Radcliffe instructed the Senior Lawyer to inform the Lawyers of the owner that he wished to resolve all matters between himself and the original owner amicably and was ready to move out of the property to give vacant possession as he was aware that a potential purchaser would require possession. The Senior Lawyer conveyed that position to Owner’s Lawyers by letter dated 5th May 2011.
On 13th May 2011, the Advocates of the Land Owner wrote to the Senior Lawyer on behalf of Mr. Adrian Radcliffe stating that a Notice of Termination of his month to month tenancy had been served on him and had expired at the end of May 2010 and that they now required him to vacate the property without further delay. The land owner’s agents were already arranging for potential buyers to view the property.
It was clear that once a buyer was found, one of the terms of sale would be that the property should be transferred with vacant possession. Mr. Adrian Radcliffe and his wife visited the Senior Lawyer’s office several times to discuss the options available to them and disclosed to him that they had nowhere else to go and they were in a dilemma about what they would do if they were evicted from the property.
This back and forth went on for a year until the Senior Lawyer approached his spouse to assist Mr. & Mrs Radcliffe (who were also their family friends) to spare them and their young family the agony of eviction. No question if the Senior Lawyer and his wife had not assisted Mr. Adrian Radcliffe, he would have been evicted 10 years ago and the lives and schooling of their then young children interrupted and frustrated.
At that time, Kena Properties Ltd, which is owned by the spouse of the Senior Lawyer and her relatives, was looking for a property in the neighborhood for accommodation of staff of their International School. Kena Properties Ltd made a proposal to buy the land in October 2012 on condition that they will not take vacant possession of the land but will keep Mr. Adrian Radcliffe as tenant if he signs tenancy agreement.
Eventually, the Owner accepted the Proposal of Kena Properties to buy the property for Ksh. 135 Million. On 7th June 2013, the Senior Lawyer informed Mr. Adrian Radcliffe that he had identified a party who was prepared to purchase the property and to allow him and his family to continue in possession of the property at a reasonable rent until they had arranged alternative accommodation.
Mr. Adrian Radcliffe not only agreed that the Senior Lawyer could represent the purchaser but on 12th August 2013 he emailed the Senior Lawyer thanking him “…for agreeing to negotiate a caretaker rental arrangement…” and asked that he keep them informed of developments. It is clear that Mr. Radcliffe is withholding material facts in an attempt to lie about and demonize the gracious Senior Lawyer.
In truth, the Senior Lawyer also secured settlement of the case that had been brought against Mr. Adrian Radcliffe in the Magistrate’s Court with no orders as to costs for helping introduce a purchaser for the property. This was after Mr. Radcliffe confided in the Senior Lawyer that he did not have the means to pay rent despite having lied that he had been depositing these monies into an account at Barclays Bank.
On 30th September 2013, the Senior Lawyer asked the Land Owner’s Lawyers to confirm their proposed arrangement regarding settlement of the suit. The Advocates of the Owner replied vide a letter dated 8th October 2013 confirming that once the transaction for the sale of the property to Kena Properties was completed, the suit in the Magistrates’ Court would be marked as settled with no order as to costs.
A copy of the consent letter dated 5th December 2013 was filed in court on 17th December 2013. The Senior Lawyer duly informed Mr. Adrian Radcliffe of this development by a letter dated 13th January 2014. He also sought his confirmation if he could forward a draft of the proposed tenancy agreement for Mr. Radcliffe’s consideration. But suddenly, Mr. Adrian Radcliffe became evasive as he was off the hook.
In brief, Kena Properties Ltd not only bought this property for Ksh. 135 Million from the original owner, they took a loan of Ksh. 40 Million from Prime Bank Limited to top up the purchase price. Mr. Adrian Radcliffe had opportunity to take up the offer of first refusal to purchase the land but turned it down for lack of means. This begs the question: why should he punish an innocent purchaser of the land for value?
All the facts point that Mr. Adrian Radcliffe has himself to blame for his eviction from the land. Kena Properties Ltd bought the property ready to accommodate him as a tenant. He acknowledges receiving their draft tenancy agreement and not acting on it. If Mr. Adrian Radcliffe is not the owner and refused to enter a tenancy agreement, why is he complaining about being evicted from the land as a trespasser?
Mr. Adrian Radcliffe had indicated that he will be ready to move out in 2014 after his daughter finished preparatory school. But it seems he changed his mind and decided to adversely possess the land to the detriment of the Innocent Purchaser for Value (Kena Properties Ltd) who was trying to assist him. He is complaining because the lawful eviction interrupted him before trespassing on the land for 12 years.