The widow of former minister Arthur Kinyanjui Magugu has been allowed to pursue a case challenging the ownership of a parcel of land in Nairobi worth Sh17 billion.
The Environment and Land Court ruled that Ms Margaret Wairimu Magugu should be allowed to argue her case, especially after arguing about the continued violations of her rights.
The court said that although Karura Investments had opposed the cases, arguing that it was her seventh attempt to litigate the case, the special circumstances she had raised in the matter warranted hearing her story.
“In view of my findings, I find that the petitioner’s relentless attempts to be heard cannot be said to be an abuse of the court process. Hearing the petition will not only avail her a chance to be heard but will also provide the respondents with an opportunity to vindicate their substantive rights,” the court said.
The widow has been pursuing the 82.4-acre land in Muthaiga North against Karura Investments. She has filed several stating that the company was in the process of subdividing and disposing of the land.
The court noted that she had raised various issues, which have never been considered by the courts, including public officers’ inaction, institutional silence, conflicting reports which have never been explained, concealment of records and confirmed documented discrepancies.
The court, however, rejected her application to temporarily stop the company from charging, leasing, transferring or selling the land, pending the determination of the case.
Mr Sureshchadra Raichand Shah, a director of the company, opposed the case, saying she had filed several cases touching on the same land.
But her lawyer, JM Kariuki, said the cause of action was different on the basis of alleged continuing violations.
He further said previous cases had been dismissed for want of jurisdiction and technicality, and not after a substantive hearing. Mr Kariuki said the widow has never been heard, and the case was determined based on the evidence.
Senior counsel Ahmednasir Abdullahi opposed the case, arguing that there should be finality in litigation. He said the court made a determination on the issue of fraud and found that it was meant to circumvent the statutory limitations.
Mr Magugu has accused the Director of Public Prosecutions (DPP) of violating her fundamental rights in failing to make a decision concerning any recommendations made by the Directorate of Criminal Investigations (DCI), over allegations of fraudulent transactions involving the land.
Evidence presented in court showed that Mr Magugu obtained the title deed for a 101-acre piece of land in Muthaiga from Joreth Ltd on December 16, 1982.
Mr Magugu used the land, registered as LR number 12422/9, as collateral when his company, Commercial Commodities Ltd, borrowed Sh25 million from Grindlays Bank, now trading as Stanbic.
In November 1988, Mr Magugu allegedly instructed his surveyor to initiate subdivision of the property into two parcels – one measuring 88.6 acres and another 12.9 acres.
The process took five years, and on October 25, 1993, the land was eventually subdivided into LR number 12422/203, measuring 12.9 acres and LR number 12422/20,4 measuring 88.6 acres.
But on the same morning, another application to subdivide the larger portion was made, and the subdivision process was completed within three-and-a-half hours. The application was given the same computation number as Mr Magugu’s from five years earlier – 23380.
The larger portion was split into two, one measuring 6.1 acres, which was registered as Mr Magugu’s. The title deed was finalised in 2004, 11 years later.
Another parcel, measuring 82.4 acres, was registered almost immediately and registered to Karura Investments Ltd, and the title deed was ready on the same day, October 25, 1993.
