Owners of land Jomo exempted from board terms to get titles under Uhuru

This is the story of Kahawa West landowners and their agonising quest to secure their property – some have lost their prime land to powerful figures who exploited their misery – and why they are hopeful for a breakthrough courtesy of President Kenyatta’s administration after 47 years.

It all began in 1973 when the Nairobi City Council (NCC) bought 154.5 acres from Kahawa Farmers Cooperative Society Limited for Sh135,000. 

The parties entered into a sale agreement dated January 21, 1973 under which the seller instructed that Sh70,000 be paid to the Agricultural Finance Corporation (AFC) to offset a debt.

The balance of Sh65,000 was wired directly to the cooperative society. 

President Jomo Kenyatta later issued a gazette notice dated October 19, 1974, which exempted the sale transaction from the Land Control Board conditions.   

Not effected

According to Nairobi County Lands Chief Officer Stephen Gathuta, a transfer of the land to the new owner was, however, not effected as at some point the original title deed was misplaced.

Mr Gathuta testified that the 154.5 acres today form a permanent residential estate with about 600 houses, schools, churches, a market and other amenities. 

The land had been hived off a larger parcel estimated at 415 acres, which Mr Gathuta testified was subdivided and the remaining 260 acres left to Kahawa.

A deed plan was issued on September 21, 1995. 

The licensed surveyor, who has worked for City Hall since 1985, produced the correspondence between the City Council of Nairobi and the AFC (which held the title deed as security) as well as the sale agreement as exhibits during proceedings at the Environment and Land Court in Nairobi.

The court case had been filed on December 24, 1991 by Kamuthi Housing Cooperative Society Limited, which claimed ownership of the 154.5 acres and another 21.238 acres that the NCC had bought in 1979.

These two parcels were part of 415 acres registered under LR No. 71/7 and owned by Kahawa, which was dissolved in 1988. 

Took over

On December 20, 1989, Kamuthi took over the land previously owned by Kahawa.

Kamuthi also wanted back the 21.238 acres on which NCC had constructed a sewage treatment plant. 

The NCC had paid Sh435,000 (Sh20,000 per acre) for the 21.238 acres.

Kamuthi argued the sale of the 154.5 acres was invalid as the agreement was not signed by authorised officials and there was no resolution by members to sell the land.

Further, Kamuthi said the exemption from the Land Control Board conditions was issued after execution of the sale agreement.

Through submissions on February 5, 2019, Kamuthi also wanted the sale of the 21.238 acres nullified as there was no written agreement for sale.

Kamuthi claimed when the NCC’s overtures to buy the property were rebuffed, it forcibly took over the land and constructed a housing estate on the 154.5 acres and a sewage treatment plant on the other portion. 

“That following this refusal the defendant (NCC) began a calculated exercise to forcefully acquire the land by signing a purported sale agreement dated January 2, 1973. Under clause (b) of the alleged sale agreement, there was an express provision that after subdivision had been done in favour of the defendant, the remaining portions of 260.5 acres would be reconveyed back to the plaintiff (Kahawa),” Kamuthi submitted.

Member's testimony

James Wainaina, a member of Kamuthi, having joined Kahawa in 1972, testified the then Nairobi mayor Andrew Kimani Ngumba had told them the NCC wanted to buy the land but Kahawa members refused.

Mr Wainaina told the court there was no resolution giving the NCC the portion of the land.

The city council, he said, had constructed residential houses on the land, but the members had got nothing as value for the 154.5 acres.

Mr Wainaina pleaded the NCC be compelled to pay compensation for the 154.5 acres and a refund of the rates.

Eliud Njoroge, who had served as Kamuthi’s secretary since 2004, was unable to produce the by-laws of Kahawa, which would have shown the persons who executed the agreement were not authorised signatories as alleged or whether or not a resolution of the members was required.

Mr Njoroge instead sought to rely on an inquiry report on Kamuthi by the Ministry of Cooperatives Development in 2003 but the report too did not contain by-laws of Kahawa.

But through submissions on January 22, 2019, the NCC told the court by 2004, the tenants who had purchased the houses it had constructed  had completed paying and it appointed an advocate to process the leases.

Realisation point

The NCC said it was at this point that it realised the two portions of land had not been transferred to it.

It prepared a transfer of the 154.5 acres and sent it to Kamuthi for execution but its officials declined. The original title for the entire LR No. 71/7 was reported as missing.

Michael Njuguna testified he was a member of Kahawa prior to its dissolution and later became chairman of Kamuthi from 1991 to 2004.

Mr Njuguna confirmed there was a transaction between Kahawa and the NCC in 1979. He also confirmed the land relating to the transaction was not vacant as some members had built houses and planted crops.

It was agreed the NCC would compensate the members who had developed their parcels. Mr Gathuta was among those compensated. 

Mr Njuguna testified that Kahawa had transferred the 21.238 acres to Kamuthi in 2016 and not to itself, thus it lacked locus standi in the suit as it had ceased to exist. 

Mr Njuguna said the sale of both portions to the NCC was valid and Kahawa held the two portions in trust for the NCC.

Valid agreements

After listening to all parties, Justice L. Komingoi, on June 4, this year, said the sale agreements were valid and ordered Kamuthi to excise and transfer the 154.5 acres and 21.238 acres out of Land Reference No. 71/7 to the NCC.

“The plaintiff (Kamuthi) failed to call sufficient evidence to prove its case to the required standard of probability,” Justice Komingoi said.

The judge agreed with the NCC the consent of the Land Control Board is required when effecting registration of the transfer of land and can, therefore, be obtained at any point prior to the registration and transfer documents.

“The transaction herein was not invalidated by the fact that the exemption from the requirement of consent was issued after execution.”

“The defendant, having purchased the two parcels, was put in possession of the said parcels by Kahawa Farmers Cooperative Society Limited, which created an overriding interest in favour of the defendant,” Justice Komingoi said as he also nullified the 1995 sub-division of 21.238 acres by Kamuthi.

“The sale and purchase of the two portions having been valid and that the defendant is in occupation, it follows that the two portions be registered in the defendant’s name,” Justice Komingoi ruled.

I am so happy

With the legal hurdles cleared, last week officials from the Ministry of Lands pitched tent in Kahawa to follow through President Kenyatta’s promise to have city residents issued with title deeds by November.

For Kamau Gichumu, the 38-year wait for a title deed is finally coming to an end. He is an elated man.

The very first thing he is going to do as soon as he gets the document is take his entire family to Mombasa for a holiday.

Mr Gichumu, a former Kahawa West councillor, is not alone. He is among 750 Kenyans who will be receiving their title deeds in a month’s time after they successfully submitted their documents at Mahiga Primary School in Kahawa West.

Hundreds had lined up by six in the morning to have their documents cross-checked by officials. 

Working together with the lands officials was former councillor Muiruri Gitau, who oversaw the allocation of more than 300 plots in 2001.

“I am so happy that my people, who were quite young in 2001 but now have families, are eventually getting their title deeds. Their lives have been made much better now, they can walk around with confidence knowing they have an asset in the country’s capital,” he said.

The more than 700 plots had been allocated to Kahawa West residents through balloting.

“The long wait has been due to the fact that the initial owners of the land – Kamuthi Farmers – later on claimed they had not been fully paid and sued the county council. The case stretched out to this year when the county council won the case,” Mr Gichumu explained.

Kahawa West ward rep Antony Ng’ang’a thanked President Kenyatta, who visited the area last month and promised to start issuing title deeds to the plot owners within a month.

“It has been 38 years since my people got these plots and they finally have the title deeds. We are grateful the President has worked within the time frame he promised. We are expecting the title deeds in less than a month’s time,” Mr Ng’ang’a said.

He added that residents can now access loans and improve their lives. Jessy Githaiga, a resident of Umoja in Eastlands who owns a plot in Kahawa, was overjoyed. Though she was not issued with a title deed when she bought the land, she still developed it, confident that she would one day get the ownership document.

“The person who sold me this land was honest and told me that he did not have a title deed but my search at the county council lands office assured me that it was indeed his land and I was not worried,” Ms Githaiga said.

She is now happy that she can access loans with relative ease, unlike at the time when she only had an allotment letter.

Ken Wamae, 43, who has been resident in Kahawa West for eight years, said: “I am so glad that this process of presenting the documents has been so smooth. It was simply showing your PIN, allotment letter, photos of yourself, your ID and a copy of your ID. I can now access loans and invest more.”

Whereas the joy was palpable among those queuing at Mahiga Primary School, it was a different story for Magdalene Kung’u, 70, and her former colleague, Mary Njoki, 69.

The two women, who were allocated their plots in 1992 when they worked at the city council, did not have enough resources to develop their land.

A private developer, whom they allege was a former mayor, erected a fence around their vacant plots.

“Our plots were initially a quarry site but the developer flattened it and created a parking area and a playing ground. He then put up a fence and caused a lot of problems when we asked him why he had fenced our plots. It was a big matter and the city council had to intervene and forcibly remove the fence,” Ms Kung’u recounted. 

The two moved to court in 2007 and won the case in 2017. The developer was ordered to return the land but he died shortly after, before he could comply with the order.

As their court battles persisted, they later noticed the plots they were fighting for had long been encroached upon following the 2008 post-election violence.

Tall structures had been put up by other parties. The plots are still occupied to date.

“We have the court ruling ordering the return of our land but the old man died and we also do not have the financial muscle to remove the new encroachers. Despite all that, we have submitted our documents and are still waiting for the title deeds. With the title deeds, we can  fight for our plots,” Ms Njoki said.

Jane Wanjiku also found out another person had been awarded an allotment letter for her vacant plot.

Luckily, records at City Hall proved she was the original owner and had not at any point defaulted on her payments. She recalled how some people who were not as lucky had their plots taken away through the collusion of rogue City Hall officials, who falsified records.

“The allotment letters were not sure proof of owning the land because one is always at a risk of losing the land if he/she did not develop it. This issue of allotment papers should be done away with and title deeds issued. This way, you can even leave your child with an inheritance,” she said.

Monicah Wanjiku, 51, recalled her plot had been allocated to someone else in 2014 after she failed to pay her land rates for two years. The only thing that saved her was a structure she had erected on the plot.

“I am so happy because I can easily take a loan as I now fully own the plot. I am grateful to the government for doing this thing. It is a dream come true,” Ms Wanjiku said.

With the presentation and review of their documents done, the land owners are expecting to get their title deeds by next month as promised by President Kenyatta.