How businessmen have set record in courts with unending land litigation

It was an early Monday morning, November 1992, and the caller was Kiambu DC Samuel Oreta. The call was to a Gatundu parliamentary seat aspirant, Mr Kariuki Muiruri, who wanted to contest the seat on a Ford-Asili ticket – having played a major role in the Kenneth Matiba return from hospitalisation in London.

In the photos taken of Matiba at the All Saints Cathedral prayers, immediately after he jetted back on the morning of May 2, 1992, Muiruri could be seen standing as the bodyguard. Six months later, when he took his papers to Muthithi House – he once told me – he was told that he has a “Kanu face” and was denied the chance.

By then, President Moi had hinted that he would prefer Uhuru Kenyatta, then a political greenhorn, to contest the Gatundu seat, once held by his father, Jomo. But Uhuru had grown weak knees – and gone underground — and that is when the DC Oreta's call came. It was not a call, according to Muiruri, it was a summons to Kiambu.

That year, Muiruri had registered a company, Thika Dairies Limited, hoping to build a small milk factory in Thika town on a 14-acre piece of land. KCC was hopelessly going down. The then Barclays Bank had agreed to give him Sh80 million.

Meeting in Nyeri

When he went to see DC Oreta, he found that it was actually a summons by Central PC Victor Musoga. “We have to go to Nyeri,” he was told by Mr Oreta.

As he was whisked into the boardroom, he found the PC with Mr Arthur Magugu, a Cabinet minister, Mr Mwangi Munyiri, the head of special branch Kiambu, Mr Japheth Mwania, Kiambu District Criminal Investigations Department head, and several busy bodies hovering in the corridors.

He looked at them. They looked at him. The PC opened his drawer and fished out some Kanu nomination papers. “Sign here”, he was told. There was no need to ask why. He appended his signature and his defection from Ford Asili to Kanu was completed in a few seconds. He did not pay the Sh10,000 nomination fee.

Worried that his milk project money might be consumed during campaigns, he abandoned the quest for the Barclays loan. He hopelessly campaigned for Kanu running against Democratic Party’s Ngengi Muigai and a Ford Asili rookie, Kamuiru Gitau.

Property case

That background is important since there has been a running case on who owns Thika Dairies Limited property, which will test, once again, the principle of res judicata (matter decided) and the place of serial litigation in land cases.

The case pits Mr Muiruri and Thika tycoon Vickar Njunjiri, the owner of Mathai supermarkets, and it is about the Sh300 million land.

According to court documents, the history of this interesting saga starts in March 2008 when Kariuki sought to sell the land to Mathai for Sh9 million. As a result, he deposited the title deed with Mathai’s lawyer, Patrick Maina.

While Mr Muiruri admits in his documents that he received Sh2 million, he says that the balance of Sh7 million – which was to be paid within 30 days – was never remitted to his account and that he rescinded the contract and requested Mathai to collect his deposit. Mathai has told the court he paid the balance and that the land belongs to him.

But there is an unswered matter and which will be determined in the Kiambu court case. Mathai has been sued for fraud after it emerged that the land transfer documents which were used to ostensibly transfer the land from Muiruri’s Thika Dairies to Mathai’s Mapema Holdings had the wrong photos, wrong IDs and PINs, and wrong signatures – but the correct names of both Muiruri and his son, Sebastian.

Mathai’s lawyer, Patrick Ngunjiri, has filed an affidavit saying that this was “an honest inadvertent mistake from my office where wrong photos and wrong IDs were instead used in the said deed of transfer”.

Interestingly, the transfer had been effected at the land office and a title issued. Currently, the lawyer is one of those charged with four counts in Kiambu for fraudulently transferring the land.

In this case, the registrar of titles, Ms Sarah Maina, has also told the court that she cancelled the transfer that had indicated that the land belongs to Mathai’s Mapema Holdings after it emerged that the deed of transfer was not witnessed by the sellers. It was also published in a Kenya gazette notice after she communicated the anomaly to Mapema Holdings in September 2016.

Fraud case

It is a matter that has put the supermarkets tycoon in the dock as the two tussle over a prime piece of land in Thika town. With the prosecution having closed its case, the court will determine whether the Directorate of Criminal Investigations was right to charge Mathai and his lawyer for fraud or whether the transfer was a “honest inadvertent mistake”.

But it is the civil case on this land – and which has once again opened in Thika before Justice Gacheru – which is more interesting.

The first civil case on this land started in 2013 when one of the minority Thika Dairies shareholder Prudenzio Gaitara filed case ELC 1400 of 2013 at the Environment and Land Court accusing Muiruri of selling the land without his knowledge. That is the time that Mathai’s Mapema Holdings did a counter claim and claimed to own the land. Mr Gaitara wanted Muiruri stopped from making unilateral decisions on Thika Dairies and claimed that he had altered the directorship of the company. He wanted the land to revert back to Thika Dairies.

It was in this suit that the matter of “clerical mistakes” rather than “fraud” emerged. Mathai told the court that “the clerical mistakes in the instrument of transfer did not affect its interest in the land since the instrument could be rectified.”

It was while this case was in progress that the registrar of titles cancelled the transfer. Justice Okongo ruled that “with the cancellation of the transfer of the suit property, Mr Gaitara’s claim against the defendants falls by the way. This court cannot grant (him) leave to continue with a claim which is spent.” He was asked to lodge his dispute on internal management of the company at the High Court.

But even before ELC 1400 of 2013 was dispensed, another case was filed at the environment court against the registrar of titles for the decision to cancel Mathai’s title on account of the “clerical mistakes” contained in the deed of transfer, according to Mathai and “forgery” according to Muiruri who had been issued with a provisional title.

This case against the Registrar was a Judicial Review ELC Misc No. 6 of 2017 and the matter was dismissed on April 9, 2018. While ruling on this matter, Justice Elija Ogoti Obaga said while Mathai had not been informed the reasons why the title was cancelled, but since the grounds for cancellation was fraud, he refused to reinstate the title to Mathai. He also reasoned that with another pending case, by that time ELC 1400 of 2013, a Judicial Review “will not therefore be effective.”

After failing to get the title via a judicial review, Mathai headed to the Court of Appeal and filed another case. He also filed another appeal CA 374 of 2017 against ELC 1400 (Gaitara case).

Court records indicate that Mathai withdrew the appeals in September and November 2019 after it was raised in the case he has filed in ELC Thika seeking to preserve the Thika Dairies land.

Ruling on the matter, Justice Gacheru has ordered that the Thika case is not res judicata since “the issues of cancellation and transfer of the suit property were never heard and finally determined…the court finds that the instant suit is not res Judicata.”

Justice Gacheru has said that “though there are disputed facts as to whether the transfer was valid and cancellation was proper, it is the courts considered view that at this juncture it is not called upon to deal with the disputed facts…”

It will be interesting to watch how the civil case in Thika courts and the criminal case in Kiambu will progress over the land. But what we know is that we have not seen an end to suits and countersuits on this piece of land.

And that is how Muiruri’s milk project spilled into the court corridors.

[email protected] @johnkamau1