A defence witness in a case in which two Italian businessmen have been charged with obtaining KES 32 million by false pretenses told the court that he was unable to reconcile the position of the prosecution on the ownership of a parcel of land.
Mr Turana ole Kina, who was referred to a document indicating that a prosecutor had confirmed that the land belonged to Rafiki Ltd and the ‘present’ prosecution denying the company’s ownership, said he could not reconcile the two positions.
“I am not able to reconcile the positions in court,” said Mr ole Kina as he was being led in his evidence by defence lawyer Kinyua Kamundi.
Mr Daniele Lo Coco and Massimo Nativi are alleged to have jointly while acting as the directors of Rafiki Ltd with intent to defraud obtained KES 17 million from Ms Rita Napo by falsely pretending that they were in a position to lease her a villa on a parcel of land, a fact they knew to be false.
They are alleged to have committed the offence on diverse dates between August 30, 2018, and February 11, 2020, at Watamu area in Malindi, Kilifi County.
The accused are also alleged to have obtained KES 15 million from Girola Florenzo by falsely pretending that they were in a position to lease him a villa on a parcel of land Kilifi/Jimba 544 a fact they knew to be false.
The offence is alleged to have been committed on various dates between March 21, 2020, and February 24, 2021, at Watamu area, Kilifi.
Mr ole Kina, who is also a lawyer, told the court that it was impossible if the lease of Ms Napo and Mr Florenzo could have been entered if Rafiki Ltd was not the owner.
The witness told the court that allegations that two villas existed on paper, yet they were physically in existence were shocking.
Mr ole Kina, told the court that he took police officers to the villas where they confirmed their existence.
The witness said he took the police officers to the villas after the accused, who were his clients, were arrested.
“The villas were said to exist on paper, police saw them and even the accused. The villas existed,” said Mr ole Kina.
The witness told the court that a letter from the prosecution dated April 25, 2024, approved charges against the accused.
The witness who was referred by Mr Kamundi to a certified copy of a register commonly known as ‘green card’ said it indicated that it was opened on June 20, 2014, with the registered proprietor of the land being Rafiki Limited.
He described the charges against his former clients ten years after the opening of the register as malicious.
The witness also told the court that all documents that were referred in relation to the parcel of land indicate that it (land) was known as Kilifi/Jimba 1544.
Mr Kina said that later in an amended charge sheet the accused are alleged to have sold villas in a different land.
The witness also told the court that there are ten villas in the property Kilifi/Jimba (1544), offices, swimming pools and common use areas.
“What was indicated in the preliminary agreement is that what was sold was a villa through shares. It would be impossible for the accused to transfer the whole property (1544) as it had other people,” said Mr Kina.
The lawyer also told the court that his letter to the ODPP in Malindi led to the withdrawal of the charges against the accused but were later charged again following a complaint.
He further said that leases on the property had been entered into the title and were awaiting a signature of the land registrar.
However, the witness told the court that they were told to change user which they did and that registered owners are currently holding certificates of lease.
The witness told the court that those who do not have the certificate of the lease are the complainants and another person.
“Nobody refused to give them the certificate of lease (to the villas), they refused to sign a corrigendum, conversion of a lease to a sub lease,” Mr Kina told the court.
Mr Kina further said that in civil cases which have been filed, the complainants want the contracts relating to the villas annulled so that they get their money back.
The court heard that it is not possible for the complainants to hold the certificate of titles and have their money back.
Mr Kina told the court that he met the accused sometimes in 2013 when they visited his office with an intention to register a company to use it as an investment vehicle.
The witness said that the accused acquired land in through Rafiki Ltd which acquired freehold interest in it.