Members of Kamuthi House Cooperative Society during an AGM at Maziwa on May 7, 2016.
Troubled Kamuthi Housing Co-operative Society has moved to the Supreme Court seeking to overturn a declaration that Nairobi County is the legitimate owner of land currently valued at Sh10 billion.
The 176 acres in Kahawa West have been the subject of an ownership dispute for 33 years, court filings reveal.
On the contested land are residential and commercial properties, a public market and unutilised land that Kamuthi has been pegging its hope on to sell to turn around its dwindling fortunes.
The once giant cooperative with deep roots in Kiambu County has been weighed down by bank loans and auction threats from its lenders seeking to recover millions of shillings.
Kamuthi moved to the Supreme Court on Wednesday to challenge the Court of Appeal’s verdict in January that the land is public property.
The matter was booked before the Registrar of the Supreme Court, P. Kaavuli, with the directive that the file be placed before Deputy Chief Justice Philomena Mwilu to constitute a bench to decide if the matter is approved for hearing and subsequent ruling.
Kamuthi is represented by Paul Mwangi& Co. Advocates, while Nairobi County has hired Wanjiku Maina & Co. Advocates.
The respondent in the suit (Nairobi County) has opposed the matter being heard by the Supreme Court, arguing the case does not qualify to be admitted as it does not raise a constitutional question.
But Kamuthi counters that the Court of Appeal violated its right to a fair hearing when it issued its judgment on January 24 this year.
''In violation of the petitioner’s right to a fair hearing, as protected by Articles 25(c) and 50(1) of the constitution of Kenya, the learned judges of the Court of Appeal confronted the issue of jurisdiction of the Environment and Land Court and of the Court of Appeal as an issue in passing,’’ Kamuthi chairman Bernard Maina says in his supporting affidavit filed at Supreme Court registry.
The genesis of the dispute is in 1973 when the City Council of Nairobi purchased 154.5 acres under L.R No.71/7 at Sh135,000 and on the 26th of March ,1980, a further 21.238 acres at Sh 425,000 from Kahawa Farmers Cooperative Society.
Housing scheme
The first parcel was developed into a housing scheme while a sewage plant was built on the second to serve the estate, court documents in possession of the Nation show.
In court papers, Kamuthi claims that it is the registered proprietor of the property known as L.R No. 71/7, measuring 415 acres, being the successor of Kahawa Farmers Co-operative Society Limited, which was liquidated by the commissioner of co-operatives.
Evict Nairobi City Council
Upon liquidation, Kamuthi argues, the suit property was handed over to the plaintiff (Kamuthi) through a conveyance dated December 20, 1989, to hold the same in trust.
After liquidation, Kahawa Farmers Co-operative Society was split into two: Kiamumbi Farmers Co-operative Society and Kamuthi Farmers Co-operative Society who later lodged a suit seeking to evict Nairobi City Council and, by extension, the third parties who had purchased houses on the contested land through a rent–to–own scheme.
On December 24, 1991, Kamuthi moved to court seeking to evict the Nairobi City Council from the contested land, claiming they were demanding more than agreed in the sale agreement. Kamuthi claims the contested acreage was hived off illegally from 415 acres.
After numerous appearances in court, the matter went into a full trial in 2018. Justice L.Komingoi ruled in favour of Nairobi authorities on June 4, 2020.
The judge found that Kahawa Farmers Co-operative Society had sold the two portions -154.5 and 21.238 acres - to the then City Council of Nairobi, hence the transfer of the two parcels to Kamuthi Farmers Co-operative Society was illegal. According to the judge, Kamuthi held the two portions in trust for the council. The Court ordered Kamuthi to transfer the two parcels to the county.
Dissatisfied, Kamuthi moved to the Court of Appeal seeking to stop the transfer of the two parcels pending the determination of the appeal.
The appeal was heard on July 1, 2024. The judgment against Kamuthi was delivered on January 24 this year, by three judges, Musinga, P. Asike-Makhandia and Kantai, J.A.
In their ruling, the judges said there was sufficient evidence to uphold an earlier ruling in favour of Nairobi City County, citing the agreement dated January 2, 1973, as binding.
The judges affirmed that the parties to the suit entered into a sale agreement for the sale of 154.50 acres.
The judges also relied on witness statements and affidavits from senior managers of Kahawa Farmers Co-operative Society, chief county officer for lands, land valuers, surveyors, company secretaries from the plaintiff side and a dozen witnesses who were part of the transaction.
They stated in their affidavits that there was mischief by the plaintiff to shortchange the respondent in the deal.
''It is evidence of a situation where parties, most likely friends, in good faith, enter into certain agreements, documents are not perfected, the parties leave the scene either by being replaced in office by others or through natural attrition; that successors lose sight of the original good intentions of the parties and pursue causes that the original parties would not have contemplated,” the three Judges ruled when they dismissed the appeal by Kamuthi with costs.
Housing estate
The judges also said that there were documents produced in evidence to show the correspondence exchanged between Kahawa Farmers Co-operative Society and Nairobi City Council and the minutes in respect of both parcels.
''That under clause 3 of the agreement, the defendant was pending completion of the conveyance authorised to enter the land and do all manner of things necessary for the proposed development of LR/71/7 as a housing estate provided that unless the parties agreed otherwise such activity would be confined to an area not exceeding 154.5 acres. The trial judge analysed all the pieces of the evidence produced and found that the agreement dated January 2, 1973, was properly executed by the parties who made it; and that there was no challenge to the fact that the president of Kenya (the late Mzee Jomo Kenyatta) had exempted the transaction and that involving 21.238 acres from the provisions of the Land Control Act; and that the full purchase price had been paid for both parcels of land,’’ the three judges noted in their ruling dated January 24, 2025.
Kamuthi, which has its main operations in Kiambu county and housing investments in neighbouring counties, has been feuding with investors, who either bought land or houses from them and have never been issued with title deeds or houses.
For instance, in January this year, Nation highlighted the plight of some investors who parted with millions and bought into its creative concept of Buffalo Hills Golf and Leisure Village in Thika, Kiambu.
The design of Buffalo hills golf course in Kilomambogo Thika by Kamuthi Housing Cooperative Society.
It’s a 1,233-acre mixed use project where investors were promised presidential suites, a nine-hole golf course, a man made recreational dam and Marina and other niceties overlooking the stunning Kilimambogo.
To date, the project is at the mercy of auctioneers sent by lenders to recover money Kamuthi borrowed to buy the land.
The script is the same for the investors who bought land from Kamuthi at Soya Dam estate in Murang'a, who, nearly ten years later, have never been issued with title deeds.
sciuri@ke.nationmedia.com
