News & Analysis
Truth About Case of Adrian Radcliffe vs Kena Properties Ltd
Ignore misleading blog reports. Mr. Adrian Radcliffe has not been reinstated to any land as at 30th March, 2022. The stay of execution of his orders obtained on 10th March 2022 was extended on Thursday 24th March, 2022. The matter is set for mention on Monday 4th April 2022.
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.
News & Analysis
Former KCB Company Secretary Sues Over Unlawful Dismissal
Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.
Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.
In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.
He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.
“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.
Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.
Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.
He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.
“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.
Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.
He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.
Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.
He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.
He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.
He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.
Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.
“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.
He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.
News & Analysis
Court of Appeal Upholds Eviction of Radcliffes from Karen Land
The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.
Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] 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.”
On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.
The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.
The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.
At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.
The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.
As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.
Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting 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. No question, a local Kenyan could never have gotten away with such selfish impunity.
News & Analysis
Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.
Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.
Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.
Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.
Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.
Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.
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