Governor Anne Waiguru fights for Sh200m posh Kitisuru house
Kirinyaga Governor Anne Waiguru.
Kirinyaga Governor Anne Waiguru risks losing her Sh200 million Kitisuru home in Nairobi as the transaction for the purchase of the property has run into fresh legal complications.
She bought the house, situated at Waridi Gardens, from Kihingo Village Limited in September 2015 at a price of Sh80.6 million and paid Sh40.6 million leaving a balance of Sh40 million.
At the time she purchased the house, it had been allocated to lawyer Chris Kabiro, who is now claiming ownership and wants the governor to be kept out of “his property”.
In documents filed in court by lawyer Titus Koceyo for Mr Kabiro, at the time Ms Waiguru purchased the house on September 25, 2015, there was a court order barring Kihingo from selling, alienating, transferring, charging, or tampering with the property.
Former Tetu Member of Parliament James Ndung’u Gethenji at Milimani law courts on Wednesday, July 03, 2019.
The order was issued by Justice Erick Ogola on December 5, 2012, following a suit Mr Kabiro lodged against Kihingo. The order was confirmed on December 5, 2013.
According to Mr Kabiro, the house was not available for sale or alienation to Ms Waiguru and he wants the court to dismiss a case she filed seeking to compel Kihingo to complete the sale transaction.
Kihingo, on its part, says that completing the transaction would amount to contempt of the court order forbidding the sale of the suit property.
In two letters dated December 19, 2018, Kihingo Village Chief Executive Officer Ndung’u Gethenji confirmed to Ms Waiguru receipt of Sh40 million and indicated that the balance was to be cleared by way of mortgage.
After a protracted hearing
Mr Kabiro states that at the time of the sale of the property to Ms Waiguru, Kihingo was also aware of the existence of the court order, which was given in the presence of its advocates and after a protracted hearing.
“Ms Waiguru’s action as filed discloses no reasonable cause of action against Kihingo. Ms Waiguru is a victim of an illegal transaction but a court of law cannot give cover to such victims of illegal transactions,” says Mr Kibiro, who is an interested party to Ms Waiguru’s suit.
He adds that the initial court orders restraining the sale of the house were known to Ms Waiguru.
Stating that the court cannot lend its aid to illegal activity, Mr Kabiro says the court order was registered as an encumbrance on the property on February 25, 2014.
“Ms Waiguru is presumed to have known of the existence of the court order since the ruling from which it emanated was reported in the website www.kenyalaw.org,” he argues.
Mr Kabiro was allocated the house in compensation for legal fees since he was the lawyer for the development project in 2007.
He was allocated House Number 1D, the suit property, and a sale agreement dated November 25, 2007, was entered into between him, as the purchaser, Wagema Ltd as the registered owner of the land parcel, and Kihingo as the seller.
Assorted legal matters
Court papers indicate that Mr Kabiro was retained by Kihingo as the legal adviser on assorted legal matters relating to the project and also as an advocate for Kihingo in the sale of the 55 houses.
Fifty-one houses were sold and the remaining four were allocated to the directors.
The purchase price of Sh29.9 million was to be offset against the legal fees to his law firm and the balance of Sh12.8 million was to be paid before completion. The initial value of the house was Sh42.8 million and in 2012 it was valued at Sh71 million.
Currently, the house is said to be worth over Sh200 million. It is part of the 55 houses developed by Kihingo on the 37-acre piece of land.
Through lawyer Koceyo, Mr Kabiro wants the court to strike out Ms Waiguru’s suit on grounds that it is against public policy as it is “tainted with illegality”.
“The cause of action upon which the Waiguru case is founded arises out of an illegal transaction not enforceable by a court of law and further proceedings will not only be an exercise in futility but vexatious,” says Mr Koceyo.
Alternatively, he wants the court to order her to deposit Sh10 million as security for the costs to be incurred in court pending the hearing and determination of the case.
Suit property
In a counterclaim, Kihingo says Ms Waiguru is an unlawful tenant and should not be residing in the suit property. The company is claiming from her a sum of Sh331 million for the stand-by premium and interest accrued.
It also wants Ms Waiguru to vacate the house and pay Sh57.6 million for the rent due and owing.
It claims that Ms Waiguru “unlawfully took possession” of the house in April 2015 and has been in occupation to date.
“This is despite an existing court order barring the sale of the property, to begin with. Ms Waiguru is making reference to an agreement dated September 25, 2015, as justification for her occupation of the suit property. The agreement was void ab initio (from the beginning) given that it would be in contempt of court orders for the suit property to be sold,” Kihingo says.
“Ms Waiguru has no legitimate claim to the property and has in fact been an unlawful and illegal tenant in the suit property,” the company adds through Gichuki King’ara LLP advocates.
The case is listed for hearing on November 22, 2022.
