On March 20, 1992 former Embakasi MP David Mwenje reached a Sh3.7 million deal with Njenga Mathu to buy three plots of land in Nairobi.
But Mwenje did not complete his part of the deal. He paid only Sh1.3 million but failed to clear the balance, leading to a long-standing battle that is still pending in court.
Mwenje died in 2008 and, with Mathu also no longer in the picture, the court battle is now being fought by their children. The Court of Appeal last week set aside a December 15, 2010 High Court decision to throw out a claim filed by Mwenje’s children over the property.
Justices Mohammed Warsame, Gatembu Kairu and Agnes Murgor instead ordered the resumption of a hearing that stopped 11 years ago. They ruled that the dispute should proceed to full hearing before any judge of the Environment and Land Court other than Justice Aggrey Muchelule, who was the trial judge in the case.
They said Justice Muchelule misdirected himself in striking out the case filed by Mwenje’s daughter and son, Maureen Waithera Mwenje and Eric Kamau Mwenje.
In their June 24, 2009 application, the two siblings wanted the court to declare that they were entitled to the properties on account of adverse possession.
They are also fighting the decision of Mathu’s three children — David Kinyanjui, Monica Wangui and Grace Njeri — to evict them and auction their property to recover unpaid rent that had accumulated since 1993. Under the sale agreement, Mathu allowed Mwenje to occupy three buildings on the property as a tenant for Sh7,500 per month pending finalisation of the sale.
Mwenje’s children claim that since Mathu had rescinded the contract, their father’s occupation of the properties became adverse to that of Mathu, because they had occupied them from the date the agreement was rescinded.
As such, they argue, Mathu’s children’s title over the property was extinguished in favour of the Mwenjes under section 37 of the Limitation of Actions Act.
Judge Muchelule, in a December 15, 2010, ruling, held that the claim had no legal basis and was taken to court purely with the intention of continuing the illegal occupation of the properties.
He found that the application was frivolous and an abuse of the court process particularly because the sale agreement had been rescinded and two court cases had been filed against Mwenje.
