When Evanson Mureithi Kiboi died in January, 2001 he was yet to formally transfer ownership of a 10-acre land in Kibiko, Ngong to his business partner Stephen Kanyi Muchiri in line with an eight-year-old court judgment.
Mr Kiboi and Mr Muchiri had since 1981 battled in court over properties in Ngong and Kikuyu sub-counties, before Justice Frank Shields delivered his judgment.
The judge held that Mr Muchiri was entitled to the 10 acres in Ngong, and that Mr Kiboi transfer its ownership as such.
After Mr Kiboi’s death, his family continued to hold the title deed in trust for Mr Muchiri.
Mr Muchiri’s family did a routine search of the property in 2007, which showed it was still intact.
But when Mr Kiboi’s family made a similar move in 2021, records at the Lands ministry were telling a different story.
The land’s green card had several new entries introduced, showing that the land was transferred to a Stephen Mwangi Maina nearly two years after Mr Kiboi’s death.
As the original title deed was, and still is in Mr Muchiri’s name and in the custody of his kin, the records seemed to indicate either of two impossibilities – the businessman briefly resurrected to transfer his prime property to someone outside the family, or that beneficiaries of his estate sold the land.
Ministry of Lands records currently indicate that Mr Maina transferred the 10-acre land to Wilson Irungu Ndirangu in 2012. Mr Ndirangu then subdivided the land into five new plots, a move that effectively closed transactions on the original file.
That series of transactions has become the basis of a potential precedent-setting court battle between the families of Mr Muchiri and Mr Kiboi on one side, and individuals that are beneficiaries of the dealings.
The families of Mr Muchiri and Mr Kiboi have through Kembi-Gitura & Company Advocates sued everyone in the chain of entries – Mr Mwangi, Mr Ndirangu, The Air Travel and Related Studies Ltd, House & Homes Ltd and the District Land Registrar Ngong.
Environment and land judge Loice Komingoi in June, 2023 declined to order that House & Homes stop developing the property pending determination of the case.
The plaintiff families moved to the Court of Appeal, challenging the refusal by Justice Komingoi to stop development of the property.
On April 16, 2024 the Court of Appeal issued an order stopping the defendants from selling, transferring or in any way disposing of the land until it has determined the application by the Muchiri and Kiboi families.
The court proceedings reveal that the two companies that have bought from the new subdivisions risk losing investments of over Sh387 million on account of what they have spent, if the judge rules against them.
Mr Mwangi and Mr Ndirangu have not filed anything to defend the suit. The plaintiff families have already served them with notices of the cases at the High Court and Court of Appeal, through a newspaper advertisement on April 9, 2024.
The plaintiffs have sought court orders declaring all entries that led to subdivision and sale of the land null and void, a move that could spell costly repercussions for the defendants.
Through Faith RW & Company Advocates, Mr Ndirangu insists that he did due diligence when buying the land from Mr Maina, and holds that the transaction was done as indicated in the Ministry of Lands records.
Mr Wambugu’s House & Homes Ltd has already started constructing 44 four-bedroomed townhouses on the land.
The units are being sold from Sh16.4 million which means that even if all houses go for the same price, House & Homes Ltd will rake in Sh721 million from sales.
Towards development of the property, House & Homes says in court papers that it has spent 213.6 million.
House & Homes insists that it is an innocent purchaser that did due diligence when purchasing the land in 2019, which showed that Mr Ndirangu was the registered owner.
Its lawyers, Waweru Kamau & Associates, hold that there were no signs of fraud or deceit when purchasing the land.
House & Homes intends to sell each of the units from Sh16.4 million each. This means that the firm is targeting revenue of at least Sh721 million.
The court case, however, risks blocking its development.
Another tycoon, Charles Gakuu, has through his Air Travel and Related Studies Centre acquired another plot, and used it as security to borrow Sh32.5 million from Gulf African Bank in March, 2020.
In its statement of defence, The Air Travel and Related Studies Ltd argues that it is an innocent purchaser for value, and that it has already invested Sh174.6 million towards developing the land.
Through Waweru Kamau & Associates, the firm argues that no evidence has been brought before court to indicate that it was part of any alleged fraud scheme.
“The 3rd defendant (The Air Travel and Related Studies Ltd) states that being an innocent purchaser for value without notice and/or knowledge of any fraud, has taken possession, occupied and fully developed its said properties at an estimated cost, as at December, 2022 of Sh174,681,146 excluding time value for money; thus the harm and loss that is being visited upon it by the plaintiffs claim and exposure to the market on allegation of fraud is immensely gross and deserves protection of the law,” the aviation school says in court papers.
Both companies, however, deny that there was any fraud in their path to acquisition of the prime properties.
Aside from seeking to cancel the new title deeds, the Muchiri and Kiboi families want the court to block the defendants from dealing or developing the land.
Kembi-Gitura & Company Advocates has asked the court to grant the Kiboi and Muchiri families general damages from all four defendants for the alleged fraud, costs of bringing and prosecuting the case and interest on all financial awards that may stem from the case.
