Irony of ‘legal’ Sh35 million Kasarani land transfer nullified by Land Court
Kimuri Housing Company Limited director Margaret Wambui Ngugi displays documents during an interview in her office on Friday.
What you need to know:
- Ms Wambui’s evidence in court state that the purchase process began in 2008 and that the formal transfer happened in 2015.
- In 2021, she went to court seeking to be declared the owner of the property because a challenger had emerged seeking to lock her out of the land.
- When Justice Oguttu Mboya issued his verdict two weeks ago, the challenger, lawyer Kiumi, was declared the “lawful and legitimate” owner of the property.
She bought property worth Sh35 million in 2008 while being advised by a lawyer. The sellers also had a lawyer. Now, a court has said the land transaction was a nullity because it was alien to the country’s laws.
Incidentally, and in what shines a spotlight on Kenya’s legal profession, the person who has now been declared the owner of the property is a lawyer. The businesswoman who bought it has been barred from the five-acre land that borders the Seasons area in Kasarani, Nairobi.
The investor is seething. Her name is Margaret Wambui Ngugi, the director of Kimuri Housing Company Limited. As pleaded in the court case that she lost on February 8, she bought the land from Kasarani Clayworks Foundation Trust, which had earlier acquired it from Agricultural and Industrial Holdings Limited.
The trustees of the firm who appended their signatures to the sale are Njenga Karume (the late former Kiambaa MP and assistant minister) and Eliud Matu Wamae (the late former Mathira MP).
It was Ms Wambui’s evidence in court that the purchase process began in 2008 and that the formal transfer happened in 2015.
In 2021, she went to court seeking to be declared the owner of the property because a challenger had emerged seeking to lock her out of the land. That challenger is lawyer John Kiumi Wambugu.
One of the orders Ms Wambui sought was to be directed at the chief land registrar in Nairobi to reconstruct records of her property because they had been “interfered with, hidden and/ or destroyed in regard to the title held by Kimuri Housing Company Limited over the suit property”.
Mr Kiumi opposed the case and filed a counter-case, also seeking to be declared the owner of the property.
When Justice Oguttu Mboya of the Environment and Land Court in Nairobi issued his verdict two weeks ago, Mr Kiumi was the winner. He was declared the “lawful and legitimate” owner of the property and the title that Ms Wambui’s company had was nullified. The expenses Mr Kiumi incurred in the case will be covered by Kimuri Housing.
According to the judge’s verdict, some of the blunders Ms Wambui made included not presenting the sale agreement in her filings in court and not showing proof of making payments to the sellers of the property. The court also noted that she did not show proof of paying stamp duty.
Justice Oguttu further noted: “It is worth recalling that during the process of interrogating (Kimuri Housing Company’s) title, this court discerned and detected various defects which vitiated the validity of the plaintiff’s title/ indenture of conveyance.”
The court also indicated that she did not call any witness from the Lands ministry to back her claims whereas her opponent did, and it was also persuaded by a detective who testified and said he had submitted both the title from Ms Wambui’s company and from Mr Kiumi to the Lands office for verification.
“The fact that the certificate of title/ indenture of conveyance, which was being relied upon by the plaintiff, could not be traced at the Ministry of Lands, speaks volumes,” said the judge.
The court also noted that one transfer document supposedly filed in 2015 had a passport photo of Njenga Karume, the former Kiambaa MP and who had died by then.
“The passport-size photograph of Hon James Njenga Karume, deceased, could not be used posthumously and this raises yet another blemish/ point of concern on the propriety of the indenture of conveyance,” he said.
Ms Wambui, in her interview with Nation, said once she paid for the land via Equity Bank in 2008, she was in no hurry to transfer it because there was no friction with the sellers.
“If there is no debt, you can just transfer at your own given time. We didn’t have any problem with the seller,” said Ms Wambui.
“I’m very much disappointed in the way and the route that the judiciary has taken,” she added. "I took a Sh35 million loan to pay for it. It is not a small amount of money.”
We contacted Mr Kiumi’s law firm and his lawyer Emmanuel Eredi said on Friday that he is happy that his client was given ownership.
“We are happy with the judgement as the same upholds the rule of law and our client’s right to property. Our client followed due process and had all the documents proving how he purchased the land,” said the lawyer. “It has been a loss to my client since he has not been able to utilise the land for the last three years as he awaited the court case to be concluded.”
Ms Wambui, who is processing an appeal, has many issues to raise. Among them is that the document that bore Mr Njenga’s photo, which the court said was drawn posthumously, was signed in 2009 while Mr Njenga died in 2012. She showed us the original document, signed on October 30, 2009.
But Mr Eredi asserted: “The court faulted her for purporting to present a document executed by a deceased person for registration long after the death of the person who executed the same. Dead people cannot convey property in Kenya.”
Ms Wambui wonders what the outcome portends for the legal profession.
“We finished the transaction through the lawyer Kagiri and I paid him 200,000,” she said, showing us the receipt of payment to Kagiri and Associates Advocates issued on May 2, 2009.
The transfer document between Kimuri Housing and Kasarani Clayworks Foundation Trust was signed by J Ngaii Gikonyo and Company Advocates.
“We cannot comment on the purported sale process undertaken by an advocate when we have never seen a copy of the sale agreement. Perhaps the lawyer who represented her in the sale would be best placed to answer this question,” shot back Mr Eredi.
The court noted of Ms Wambui’s papers: “The indenture of conveyance which is being relied upon by the plaintiff is vitiated and this illegal.”
Ms Wambui also thinks the case was adjudicated too quickly.
“Whenever somebody has an interest in a land case, you will find it taken very fast,” she claimed.
But in firing back, Mr Eredi saw no issue with the speedy dispensation of the matter.
“The case was initiated by the plaintiff. It is in her interest that her own case is prosecuted at a speedy rate. In any event, Article 48 of the Constitution envisages speedy dispensation of justice as one of the tenets of the right to access to justice. This allegation is therefore hollow and in bad faith,” he said.
He also said Ms Wambui jinxed her case by not attaching a sale agreement.
“She never filed a copy of the sale agreement in court,” noted the lawyer. “The court does not proceed on blank allegations but on evidence presented before it. Ms Wambui has dropped her previous lawyer and hired former Law Society of Kenya president Eric Mutua to prosecute the appeal.
“This judgement does not have legs,” she said. “If the indenture did not exist, what was the court cancelling in that judgement?”
