Members of Kamuthi House Cooperative Society during an AGM at Maziwa on May 7, 2016.
The Supreme Court has allowed Kamuthi Housing Co-operative Society to file a late appeal against a judgment that saw it lose 176 acres valued at Sh10 billion in Kahawa West to the Nairobi City County Government.
A five-judge bench presided by Chief Justice Martha Koome allowed transmission of the notice of appeal outside the 14-day timeframe, following an application by the Co-operative.
The judges found that the delay was not deliberate but was attributable to the operations of the Court of Appeal, which delayed the processing of the documents for transmission to the apex court.
“From the affidavits, we are persuaded that the delay, though regrettable, was occasioned by circumstances beyond the applicant’s direct control. We are satisfied that the delay in contention was caused by the Court of Appeal and not the applicant,” said the judges while extending the timelines.
The contested judgment having been delivered on January 27, 2025, the cooperative society was supposed to transmit the notice of appeal within 14 days, according to the Supreme Court Rules, 2020.
However, they delayed and transmitted the same 12 days later on February 19, outside the prescribed time frame.
They attributed the delay to the Court of Appeal, specifically pointing out administrative inefficiencies at the appellate court in stamping and signing the notice.
The other judges on the bench were Deputy Chief Justice Philomena Mwilu together with justices Smokin Wanjala, Isaac Lenaola, and William Ouko.
In the intended appeal, the co-operative society with over 7000 members is challenging the decision of the Court of Appeal to dismiss their claim that the Environment and Lands Court (ELC) lacked authority to handle the dispute. This is because the counter-claim filed by the defunct Nairobi City Council was time-barred.
The appellate bench comprised justices Daniel Musinga, Asike Makhandia, and Sankale Ole Kantai. It found that Kamuthi’s complaint in faulting the ELC trial judge, Loice Komingoi, for not finding that the counterclaim was time-barred by the laws of limitation, had no place or basis at all.
Also challenged is the finding that the land is public property and the conveyance of the whole parcel of land from Kahawa Farmers Co-operative Society Limited to Kamuthi Housing in 1989 was void for all purposes.
On the contested land are residential and commercial properties, a public market, and unutilised land that Kamuthi has been relying on to sell and turn around its dwindling fortunes.
The once giant co-operative with deep roots in Kiambu County has been weighed down by bank loans and auction threats from its lenders seeking to recover millions of shillings.
On whether the intended appeal raises constitutional issues, Kamuthi told the apex judges that the jurisdictional competence of the Court of Appeal in adjudicating the counterclaim is a constitutional question under Article 162(2)(b) and Article 165(5) of the Constitution.
The City county government, in opposition, argued that the matter was strictly civil, and no constitutional issue was canvassed in the lower courts.
“Without expressing ourselves with finality on the issue and seeing the opposing positions on the issue as well as the circumstances of the case, we are prepared to let the determination of the jurisdictional question be raised and determined at the hearing of the appeal,” said the Supreme judges.
The legal dispute started in 1991 in court after Kamuthi sued to seek declaratory orders of ownership over two parcels of land measuring 154.5 acres and 21.3 acres respectively, situated within a vast land registered as L.R.No.71/7, itself measuring approximately 415 acres.
In response, the Nairobi City Council filed its defence and counterclaim on August 6, 1992, and amended on April 9, 2009, seeking orders compelling Kamuthi to transfer the two portions of land.
Kamuthi contends that the counterclaim was time-barred by the Limitation of Actions Act. It said the claim concerning the 154.5 acres was instituted 19 years after the alleged agreement for its sale while the claim for 21.3 acres was filed 30 years after the agreement in question.
The agreement for sale dated January 2, 1973, was made between Kahawa Farmers’ Cooperative Society Limited of the one part and City Council of Nairobi of the other part.
According to Kamuthi, the trial court erred in adjudicating the claims raised by the Nairobi City Council without due regard to their being statute-barred.
Furthermore, while the Court of Appeal addressed the jurisdiction of the ELC in passing, it is stated that it erroneously dismissed the jurisdictional objection on the ground that it had not been specifically pleaded by Kamuthi.
However, Ms Christine Ireri, Acting County Attorney of the City County Government contended that the devolved unit was entitled to the two land parcels.
It was argued that the trial court heard the matter on its merits and delivered its judgment on June 4, 2020, finding that the county government had validly purchased the two parcels of land. The property had been placed in possession by Kahawa Farmers thereby establishing a constructive trust in favour of the defunct county council.
“Neither the trial court nor the Court of Appeal engaged in interpretation or application of any constitutional provision in making their decisions and therefore the application is brought in bad faith and aimed to further delay the City county Government’s enjoyment of the fruits of its successful litigation in a matter that has been in court for 34 years,” she stated.
