Exiles, half a century later, Gethi land case shows no signs of ending
Police Commissioner Ben Gethi is conferred with 1st Class-Chief of the Burning Spear by President Daniel arap Moi. Gethi was dismissed as police commissioner and jailed after the August 1, 1982 attempted coup by junior Kenya Air Force officers.
It is one of the longest and most intriguing land disputes in Kenya, involving two families and the estate of former Police Commissioner Ben Gethi.
At the centre of the wrangle is the 303-acre farm in Murichu village, Ndaragwa constituency, Nyandarua County.
The twists and turns of the 52-year-old battle has sucked in the National Land Commission, the Ministry of Land, Nyandarua County Land Management Board and the Judiciary.
It gives an insight into acquisition of large tracts of land by powerful politicians and senior government officials during the Jomo Kenyatta government.
At the same time, claims of fraud have attracted the attention of the Office of the Director of Public Prosecutions (ODPP).
On July 26, 2022, the DPP wrote to Nyandarua County Police Commander ordering him to open an inquiry into the matter.
The dispute involves the family of Gethi, who was the second post-independence police commissioner from 1978 to 1982, against the families of Ndurere Muhunyo and Benjamin Ithinyai.
The battle has been vicious, with some individuals fleeing into exile, claiming their lives are in danger.
Muthaiga home
While the Muhunyo and Ithinyai families trace their presence on land to 1932, Gethi claimed to have acquired it in 1971 through a curious instrument called “gift of affection”.
It began in 1932 when a colonial settler – Fabian Harry Wallis – inherited the farm from his father, Arthur Gilbert.
Wallis hired two locals, Ndurere Muhunyo as his farm manager and Benjamin Ithinyai as his chef.
With time, Wallis, Muhunyo and Ithinyai developed a close relationship and eventually started a milk processing plant.
The two Kenyans started families on the vast farm.
Walis left the farm in 1964, retiring to Nairobi.
He leased the farm to Muhunyo and Ithinyai for five years and made an undertaking to return in 1966 to finalise the conveyance to permanently transfer the land to the pair.
True to his word, the transaction took place before a lands board sitting in Nyahururu town, then called Thompson Falls, on April 14, 1966.
The history of the land shows that the first title deed was issued to Gilbert in 1947.
He, in turn, transferred the title to his son on May 16, 1951.
Muhunyo and Ithinyai continued running the farm after Wallis left, holding on to the dairy cattle and operating the milk processor which also served farmers in the area.
In August 1971, General Service Unit (GSU) officers descended on the farm in trucks and violently evicted the families.
The houses on the land were razed and the milk processor destroyed.
Muhunyo’s son, Wilson Macharia, was killed in the eviction.
After the eviction, the two families made enquiries at the land’s registry.
It showed that the farm had been transferred to Gethi by Wallis via an entry on the title deed described as a “gift of affection”.
In court, a lawyer for the two families said the land was first transferred from Gilbert to Wallis who then transferred it to Ithinyai and Muhunyo.
But he pointed out to the court that there was an entry on the title which showed that the land had been transferred to Gethi for a consideration described as “affection”.
According to the lawyer, there had been an attempt to insert the word “gift” without countersigning the amendment.
Gethi was at the time commandant of the GSU while Wallis was living in his Muthaiga home in Nairobi.
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For reasons that are not clear, the Muhunyo and Ithinyai families could not get access to Wallis up to the point of his death in 1978.
The two families engaged the services of a lawyer and a caveat was placed on the land, barring any transactions soon after the 1971 evictions.
At the time, the Muhunyo and Ithinyai families depended on pro bono legal services.
On July 22, 1980, the 1971 entry transferring the land to Gethi was cancelled by the registrar of lands when the police boss applied for a title deed.
Gethi’s efforts to transfer the land to another entity for Sh6 million was thwarted when the registrar rejected his application for the second time.
Things took a dramatic turn on December 4, 2001 when the caveat was purportedly withdrawn.
On the same day, Mrs Angela Wairimu Gethi, the widow of the former police chief, was given probate of the will of the estate of her husband as the executor.
Genuine entry
The instrument of transfer against the title was signed by one E.N Gicheha for the lands registrar.
He registered the transfer of the title to Mrs Gethi as the beneficiary.
In July 2010, Mrs Gethi transferred the land to an entity called Murua Ltd, which had been registered on March 18 of the same year.
Intriguingly, Murua Ltd was the trading name of the company Muhunyo and Ithinyai had registered and used for their milk business since the 1960s.
And as all this went on, natural attrition took its toll on the disputants.
Ithinyai passed on in 2009 and shortly afterwards, his wife died in a mysterious fire at a market centre she and her husband had taken refuge after the 1971 eviction.
Muhunyo died in 2010, followed by his wife six years later.
The battle for the land was taken up by Mr John Ngotho Ndurere, Mr James Muthami Ndurere, Mr David Kimengere Waititu and Mr David Gitonga as representatives of the estate of Muhunyo and Ithinyai.
In a suit filed on September 5, 2018 by Muhunyo and Ithinyai families against the Gethi widow and Murua Ltd, the plaintiffs urged the court to declare them the right owners of the land.
They also sought a permanent injunction against the Gethi family, farmhands and agents from entering the land or interfering with the Muhunyo and Ithinyai families’ use and enjoyment.
After a protracted legal process, the Environment and Land Court in Nyahururu ruled in favour of the Muhunyo and Ithinyai families.
But it was a short-lived triumph for the two households.
On May 5, 2020, the families suffered a shock when the judge amended the decision on the strength of a counter-claim by the Gethi family.
The court handed the land back to the Gethis.
Justice Mary Oundo said a letter from chief land registrar of July 30, 2018 had concluded that the last genuine entry on the farm was the one that transferred the lease from Wallis to Muhunyo and Ithanyai on November 7, 1964.
In the latest development, an advocate acting for the Muhunyo and Ithinyai families – Tim Okwaro – wrote to the President of the Appellate Court through the Nakuru deputy registrar.
Mr Okwaro is seeking to have an application of September 23, 2020 listed for hearing before a single judge for extension of time for filing appeal out of time.
The Court of Appeal acknowledged receipt of the letter on March 1, 2022.
“We will in the meantime be filing an application for stay of execution of the judgement of Justice Oundo and will seek for the listing of the same together with the application for extension of time,” Mr Okwaro’s letter to the court read.
