Homeowners face eviction in Sh1.2bn Thika land dispute

A land buying company has lost ownership of 85 acres in Thika valued at Sh1.2 billion following a protracted legal battle.

Langáta Development Company Limited suffered a blow after the Supreme Court declined a request to appeal a ruling of a lower court that declared a widow, Mary Wairimu Dames, the legal owner of the property.

Ms Wairimu lost ownership of the prime land that is situated along Thika-Garissa highway measuring 85.3 acres 31 years ago, when it was hived off by a surveyor and given to the real estate company.

At the Supreme Court, the company wanted the judges to allow a notice of appeal that was lodged out of time be deemed to have been filed within time.

It also wanted the court to certify that the intended appeal raised questions of general public importance on interpretation and application of Section 23 of the Registration of Titles Act (now repealed by the Land Registration Act No. 3 of 2013).

But the Supreme Court judges found that the company had failed to satisfactorily explain the “inordinate delay in lodging the notice of appeal to warrant exercise of the court’s discretion to enlarge time”.

“The application for certification has no legs to stand on and we do not find it necessary to consider it,” said a five-judge bench led by Deputy Chief Justice Philomena Mwilu.

Others on the bench were Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola.

The ruling sets the stage for a possible eviction of home owners who purchased plots from the land buying company.

The judges also declined a request by the company led by its director, Eliud Kariuki, to review a ruling of the Court of Appeal dated July 19, 2019 that had stopped it from taking the battle that has been in court since 2011 to the Supreme Court.

The appellate court had also dismissed the company’s appeal against a finding of the Environment and Lands Court judge Lucy Gacheru that the widow was the legal owner of the land.

Evidence in court indicated that Ms Wairimu was the registered proprietor of the huge chunk of land in the east of Thika Town christened Mary Dale Farm, registered as L.R. 57550 – LR 7540/23, measuring 1062 acres.

By a sale agreement dated February 6, 1989 the widow agreed to sell to the company 672 acres of the land at the price of Sh23,500 per acre translating to Sh15,792,000.

She divided the land into four portions with different acreages of 27 acres, 62,672 and 300 acres and a survey exercise was carried out. The transfer was duly registered and a certificate of title issued to the company on August 25, 1992.

However, after 14 years it later emerged that the surveyors had given the land buying company 757.3 acres instead of 672 acres. This was an extra 85.3 acres.

The widow’s case was that she was unaware of that discrepancy until 2004 when she received a rates demand from the Municipal Council of Thika.

The document showed the acreage of her remaining land, which she still occupied, to be different from what it ought to have been.

Upon discovery of the extra land transferred, the widow moved to court seeking an order for re-transfer of the excess land and by a judgment dated February 26, 2019 the Appellate court ordered the company to return the property.

An order was also issued to evict the land buying company, its agents, servants or tenants from the extra 85.3 acres’ portion of land.

The company was aggrieved with the judgment and sought permission to take the battle to the Supreme Court arguing that the Appellate bench ignored overriding interest of third parties occupying the 85.3-acres who are innocent purchasers. It added that the purchasers stand the risk of being evicted from the suit property.

Further, that the court ignored the fact that the company had engaged professional surveyors to survey the land and that the conveyance documents were drawn by professional advocates.

In her court papers filed in 2011, the widow indicated that the 85.3 acres had been fraudulently and surreptitiously transferred to the land buying company.

She convinced the court that the land was transferred and registered into the company’s name fraudulently, illegally and unlawfully and was therefore null and void.

The court heard that the widow was taken advantage of due to her education background and that the transfer was caused without the requisite consent of the Land Control Board and without payment of any consideration.