Mwai Kibaki faults court in firm ownership dispute

Former President Mwai Kibaki has faulted the Lands court for allowing ‘strangers’ to control and manage a multi-million property which he claims to have owned with other co-directors since 1970s.

Through senior counsel Kamau Kuria, the court of Appeal in Nyeri heard that Kibaki together with seven others are the legitimate and registered proprietors of Mathingira Wholesalers Company Ltd.

Kibaki termed the set of directors controlling the property as ‘court imposed trusts’.

COMPANY

“It is difficult to understand what the Lands court had in mind while giving them rights to manage and control the property in total disregard of the law,” added the former Head of State.

The court’s bench comprising Justices Agnes Murgor, Fatuma Sichale and Sankale Ole Kantai heard that Kibaki and his seven colleagues bought the disputed land and property and established the company in 1976 and have never transferred their shares.

“They have never transferred their shares to any person in accordance with Articles of Association and Memorandum. A meeting of the company was convened in 2007 and some people purported to remove Mr Kibaki, Kimwatu Kanyungu and other shareholders from office,” lawyer Kuria said.

The court heard that Kibaki and his team including his brother Samuel Githinji acquired the protracted property, situated in Nyeri town, and were registered as the first shareholders and directors of the company.

They bought 0.0697 hectares of the disputed land in 1970s and incorporated it as Mathingira Wholesalers Limited in 1983.

The initial owners of the land also became the directors of the company.

LEASE

In his counterclaim and defence, lawyer Kuria said the Kibaki-led team paid for lease of the disputed land and they also renewed it in 2012.

“The same people who owned the company and bought the property under certificate of lease in 1976 are the same people who renewed the lease in 2012,” said Mr Kuria.

The court heard that the original founders of the company are deceased and only Mr Kibaki and Mr Kanyungu are alive.

The dispute about the property started after the company’s directors disagreed on its management after a new chairman was elected into office in October 2007 replacing Mr Kanyungu.

It emerged that the shareholding of the company had changed due to transfer and sale of shares by some of the initial proprietors of the company and inheritance of those who had passed on.

Some of the shareholders ceased to be shareholders and were replaced by other persons.

“It is like a child claiming ownership of property bought by parents before he was born. The respondents were incorporated later,” said Layer Kuria.

Mr Kuria told court that the new shareholders flouted procedures set out in Articles of Association and the Company’s laws.

SALE

In response, the embattled shareholders through lawyer Lucy Mwai said they were not intruders or strangers to the suit property as asserted by Kibaki.

“Upon purchase of the shares they become owners of the company. The sellers of the shares ceased to be owners and stopped attending meetings and they were never interested in affairs of the company. The Articles of Association was observed,” said Ms Mwai.

She said among the original proprietors who sold their shares was Kibaki’s brother Samuel Githinji.

The court heard that all members of the company except President Kibaki, who was not actively involved in management, knew about the sale and transfer of the company’s shares to the new shareholders.

The Kibaki’s team want the court of appeal to quash the Lands and Environment Court judgement which was delivered by Justice Lucy Waithaka and declare that they are the rightful owners of the disputed property.

The ruling of the appeal will be delivered on March 21.