Nairobi county officials face jail over Sh17m owed 90-year-old widow

Mr Asitiba Atenya Ayua and his wife Phanice Ondeche Asitiba bought a house in Kariobangi South from the City Council of Nairobi for Sh22,500 in 1972.

Determined to secure a home for his young family, Mr Asitiba, a former quarry worker, bought the house they had lived in since 1965 through a tenant purchase scheme promoted by the council. 

He cleared the purchase price and paid all the rates for the property known as L.R no. 12062/316 (V-7053). 

Mr Atenya was given a title deed for the property -- a three-bedroom house adjacent to the Civil Servants Estate. Over the years, he rented out the house to tenants to earn an income.

But sometime in 1993, the landlord was stunned when rent was not paid on the due date and the tenant said someone had told him she was the new owner of the house. 

It would later emerge that the council had sold the house to someone else for Sh250,000 through an auction. The house had purportedly been repossessed over alleged Sh15,338.30 in rate arrears.

Mr Asitiba in 1996 unsuccessfully attempted to save his property by challenging a suit filed by the second purchaser. He died in 2000 before he could secure the property.

Illegal sale of property

That would lead to his wife, and son Patrick Atenya Asitiba, filing a suit on October 31, 2003, arguing illegal sale of their house by the council.

The two told the High Court that Mr Asitiba had contested the arrears and the council had acknowledged it had erred by sending him a demand notice.

Mr Atenya told the court his father visited City Hall after receiving the demand letter, which said he owed the Council rate arrears.

After reconciliation of records, it was confirmed that his father did not owe any money, either as a balance of the purchase price, or rate arrears. 

The court heard the council instructed its lawyers to withdraw both the demand letter and a suit on the property through its letter dated 29.9.1993.

This, the court ruled, confirmed the assertion that the demand letters and the suit had been erroneously filed to claim rate arrears.

But despite the withdrawal of instructions, Mr Atenya said he was surprised that the council’s lawyers went ahead with the case without his father’s knowledge and eventually sold the house to a third party behind his back.

Never paid the money

The son produced before the court a copy of the letters of administration he had obtained over his late father’s estate. 

“The plaintiffs tendered credible evidence confirming that L.R. No 12062/316 (V.7035) belonged to the late Asitiba Atenya Ayau who did not owe the defendant any rates nor purchase price to warrant the defendant sell the property in the manner it did. The defendant’s action therefore was not justified in law,” ruled Justice Joseph Sergon on October 19, 2017.

The judge declared the sale of the property by the Council unlawful and ordered City Hall to pay the family Sh12 million, being the estimated value of the house as well as costs of the suit.

The council has never paid the money to the widow, who is now 90 and sickly.

By March, this year, the award, which was to attract an interest of 12 per cent a year until payment in full, had attracted an interest of Sh4,920,000.

Through lawyer Wangira Okoba, mother and son obtained warrants of arrest against senior county employees for failing to compensate the widow Sh17 million.

Effect the payment

They want Mr Jairus Musumba (acting county secretary), Ms Lydia Kwamboka (county attorney), Mr Allan Esabwa Igambi (executive committee member, Finance) and Mr Halake Wako (finance officer) committed to civil jail.

When the four appeared before Justice Sergon on Thursday, they pleaded to be given until May 31 to effect the payment.

Justice Sergon directed them to compensate Mrs Asitiba for the illegal sale of her house.
Mr Okoba urged the judge to stamp the authority of the court by ensuring the four comply with the court order as the widow proved she had no rent arrears.

“Unless this court takes a firm stand to stamp its authority, these officials of the NCC have become elusive and have totally refused to pay the widow, yet they sold her house irregularly in 1993,” Mr Okaba told the judge.

“It’s five years down the line since the judgment was delivered, yet the officials of NCC have been tossing the widow here and there,” he added. 

The court was told since her husbands’ death, Mrs Asitiba has struggled to pay medication costs of Sh25,000 monthly.

Justice Sergon gave the county officials until May 31 to pay the widow, failure to which they will be jailed.

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