The battle for the control of a multibillion-shilling piece of land left behind by former spymaster James Kanyotu may drag on for years.
Justice Lucy Gacheru disqualified herself from the case following an application by Willy Kihara, a member of the Kanyotu family whose paternity was in question in a separate dispute.
After recusing herself, Justice Gacheru directed that the case file be placed before the head of the Environment and Land Court for allocation to another judge.
This means its determination could take longer considering the existing backlog and a shortage of judges. The new judge will need time to understand the background and the issues in dispute.
“Even though I find no evidence of perceived or actual bias has been advanced by the applicant, I however find it prudent, fair and in the interest of justice to disqualify myself from handling this matter further,” stated Justice Gacheru.
She said from the allegations made against her by Mr Kihara and the other defendants, it was clear that “these are litigants who are keen to blame their losses in court cases to bias on the part of the judge”.
She, however, noted that the basis of Mr Kihara’s application is a ruling she made in September last year where she declared that two of Kanyotu’s widows have no right to the Sh10 billion property.
In the September 24, 2020 ruling, Justice Gacheru also barred Mr Kihara and the two widows – Margaret Nyakinyua and Mary Wanjiku – from interfering with the property, currently registered to Marriot Africa International Limited.
“Maybe, if the outcome of the said ruling was in their favour, the applicant would not have filed the instant application. But that is just a may be,” said Justice Gacheru.
While urging the judge to recuse herself, Mr Kihara said he was apprehensive on reasonable grounds that Justice Gacheru would not be impartial for a fair hearing.
He said the judge issued the September ruling while she had noted that there were grave allegations of fraud and illegality levelled against Marriot Africa International Ltd and its affiliates.
Mr Kihara also argued that the judge had handled disputes relating to the suit property on three other occasions.
Further, that in some of the cases handled by Justice Gacheru, the dispute involved some parties that are also in the current matter.
As a result, he said, the judge already had personal knowledge of the facts concerning the dispute. His application was supported by Ms Nyakinyua, Ms Wanjiku and Kangaita Coffee Estate Limited.
Ms Nyakinyua told court that she is the administrator of Kanyotu's estate, the principal shareholder of Kangaita Coffee Estate Ltd. She further averred that the Kangaita Coffee Estate Ltd was the registered proprietor of the disputed land.
She said Justice Gacheru handled another case filed in 2014 and therefore became aware of the issues in dispute in all the proceedings relating to the alleged sale of land.
That it is impossible to clear any prejudice she may have in the case proceedings “now and in future against the defendants” who are associated with the late Kanyotu.
The case started after a real estate firm associated with the Deliverance church, Ukombozi Holdings Ltd, moved to the land and started subdividing it into plots.
Evidence produced leading to the September 2020 ruling showed that the property initially belonged to Kangaita Coffee Estates Ltd, an entity in which the late intelligence chief was the majority shareholder.
But through a sale agreement dated April 19, 2012, the company directors sold the property to Trendsetters Investments Limited, which in turn sold it to Marriott Africa International Limited on August 21, 2014.
The latter sold it to Ukombozi Holdings and subdivided the land into 1000 plots and started disposing them to third parties.
Marriott Africa International filed the case in 2019, claiming that heirs of Kanyotu were trying to acquire the suit property through extra judicial means by threatening the subplots owners with eviction notices and warning the public against dealing with the same.
It was said that some members of Kanyotu family caused placement in the newspapers advertisements titled Caveat Emptor, claiming that the suit property belonged to Kangaita Coffee Estates Ltd and the estate of the late Kanyotu.
However, after considering the evidence, Justice Gacheru found heirs of Kanyotu had not established a case against the land purchasers.
While seeking recovery of the land, the family told court that the property was not validly sold. They said the sale agreement was a forgery and that the parties who disposed it did not have authority to sell the same.
The judge noted that one widow (Ms Wanjiku) and Mr Kihara had received some monies as part of purchase price for the sale of the suit property. The two had also sworn affidavits and agreements claiming that they had no interest over the suit property.
The court heard that Ms Wanjiku had in an agreement dated May 30, 2018, confirmed that she received Sh65.1 million as her share of proceeds from the sale and in consideration of Sh30 million, she would withdraw all pending litigations. Further, Mr Kihara accepted Sh39 million in final settlement of any claim.
During the proceedings, Mr Kihara stated that Ms Jane Gathoni Muraya, also an administrator of the estate, had admitted in open court that she gave the title deed of the suit property to Kamlesh Pattni, as collateral for a Sh50 million loan.
Mr Kihara said neither him nor his stepmother, Ms Wanjiku, were owners of the suit property and therefore, they had no right or authority to sell the same and could not have sold it.
He also averred that he received a cheque, of undisclosed amount, from Kamlesh Pattni in the presence of lawyer Odhiambo M. T Adala and that he was being given the money to persuade him to cease pursuing the recovery of the suit property.
The late Kanyotu served as spy chief for 27 years. He died in 2008, leaving an estate valued at more than Sh20 billion.
