A woman claiming her Sh45 million Nairobi home was fraudulently transferred has asked the High Court to lift orders that blocked the intended criminal prosecution of her former lawyer and the property's buyer, escalating a 17-year legal battle after the DCI's Land Fraud Unit proposed fraud charges over the transaction.
The two are seeking to quash decisions by the Director of Public Prosecutions (DPP), the Inspector General of Police and the Directorate of Criminal Investigations (DCI) to charge them over the transfer of House No. 6, Casablanca Villas on Dennis Pritt Road in Nairobi.
But Ms Wambui argues she was never made a party to the judicial review case "despite being the complainant in the criminal investigation and defendant in the earlier civil litigation over the property."
"The outcome of these Judicial Review proceedings will directly affect the applicant (Wambui), her legal rights and the fair administration of justice, without her being afforded a hearing," Ms Wambui says in her supporting affidavit.
Court papers show the DCI's Land Fraud Unit investigated the dispute and prepared a charge sheet accusing Mr Wainaina and Ms Mwangi of conspiracy to defraud, forgery, making false documents, uttering false documents, obtaining land registration by false pretences and stealing.
Investigators allege the offences were committed between 2008 and 2009 during the transfer of the Casablanca Villas maisonette, which they value at Sh45 million.
Ms Wambui says she was scheduled to attend the plea on June 24 when she learnt that High Court judge William Musyoka had issued ex parte orders the previous day stopping the criminal proceedings.
"I was alerted by the Investigating Officer under the auspices of the third respondent (DCI) that the ex parte applicants had secured a court order to stop the criminal proceedings from taking off," she says in her filings.
She wants those orders vacated, arguing that she was a directly affected party and should have been heard before the court granted leave and a stay.
Ms Wambui argues the applicants failed to comply with the Fair Administrative Action Rules, 2024, despite relying on the Fair Administrative Action Act in filing the judicial review proceedings.
She contends the court granted orders without hearing parties who stood to be affected and says the issues raised by the applicants can instead be determined during the criminal trial.
"All the arguments which the ex parte Applicants posit before this court can fully and effectually be presented in full ventilation before the criminal court," she says.
Lucy Wairimu Mwangi, the purchaser, maintained that she lawfully bought the property for Sh13.7 million, while Ms Wambui has consistently alleged the transfer was fraudulent and carried out without her authority.
Ms Wambui claims she never received the money and that the transaction was executed by her former advocate without her permission.
She says this was after she surrendered her title deed, passports, bank records and other original personal documents to the advocate after retaining him to handle her divorce and matrimonial property case.
However, lawyer Wainana and Ms Mwangi contend the proposed criminal case is an abuse because the property's ownership was settled in earlier civil litigation.
Earlier this month, Ms Wambui also filed a fresh case before the Environment and Land Court seeking to cancel the transfer and restore the property to her name, while Mr Wainaina and Ms Mwangi moved to the High Court judicial review division seeking to block their prosecution.
The High Court case is scheduled for mention on July 14 before the court decides whether to allow Ms Wambui into the proceedings and whether the interim orders suspending the proposed criminal prosecution should remain in force.
