Sh8 billion Karen land ownership tussle not new in the courts

Nairobi; Kenya: The ongoing tussle over the ownership of the controversial 134 acres of prime Karen land is not new in the courts.

The land, estimated to be worth about Sh8 billion, returns to the courts nearly 12 years after it was subject to other cases, which ended up at the Court of Appeal, then the highest court in the country, in 2002.

In 1983, the land was valued at Sh1.2 million and in 1998, the figure rose to Sh400 million and shot up to the current Sh8 billion.

Once again, it appears lawyer and businessman Horatius Da Gama Rose, a Muchanga Investments Limited director, who in 2002 succeeded in his pursuit to reclaim the land ownership, will put another spirited legal battle to regain the property.

Da Gama had won a case against Mr Antony Howard Victor Church, the Safari Unlimited (Africa) Ltd director, who had lived in the property for 45 years, and claimed ownership on adverse possession grounds, normally claimed by squatters.

The disputed land issue has been handled by five judges; three Appeal Court judges and two in the High Court and top lawyers, Stephen Mwenesi and Fred Ngatia.

In 2002, Civil Appeal 25 of 2002 was determined by justices Joseph Nyamu, Samuel Bosire and Onyango Otieno, having emanated from a ruling by High Court judge John Khamoni on March 2, 1999.

Different suit

Justice Msagha Mbogholi has also handled a dispute over the same property, though in a different suit.

The current dispute is before Justice Nyambura Gacheru with lawyer Cecil Miller appearing for Muchanga. The earlier case was filed at Environmental and Land court Case 293 of 2009 between Safaris Unlimited (Africa) Limited versus Muchanga.

The case is currently in the same court, pitting Muchanga against Telesource.com, Jina Enterprises, Habenga Limited, Director of Physical Planning, Director of Survey, Chief Lands Registrar and a Mr John Kamau Mugo, who has been enjoined.

Muchanga, through its lawyer, Ngatia, had moved to the Court of Appeal when the High Court refused to strike out an Originating Summons dated January 29, 1998 which sought the extension of a caveat registered against the property LR 5386/3.

The case was occasioned after Howard, represented by Mwenesi, sought an extension of the caveat he registered in 1994.

He claimed ownership of the land because he had lived there as a tenant since 1969 when the then registered owner, Arnold Bradley, was still alive.

The Lands Department Central registry in Nairobi had registered the caveat on May 4, 1994 on the application of Safari Unlimited.

Court records

Court records indicate that Howard, through various correspondences, had confirmed that the suit property belonged to Muchanga, which had bought the land in 1978 from Barclays Bank International.

“In support of the Originating Summons, Howard swore an affidavit on January 21, 1998 and deponed inter alia, that he had occupied the suit property since 1969 and that in 1978, Muchanga bought the entire property. Howard further deponed that in September 1993, about 15 years since the appellant company bought the property and 19 years since the death of Bradley, he saw an advertisement in the newspapers purporting to advertise the sale of the land, which he believed he was an adverse possessor. Following the advertisement, the 1st respondent company had a caveat registered over L.R. 3586/3 to protect the Safari Unlimited and Howard’s adverse possession,” read the ruling.

“In an affidavit sworn on April 9, 1998 in support of the application to strike out Originating Summons, Da Gama Rose deponed that Muchanga is the registered owner of property L.R.No.3586/3 with effect from February 11, 1983 and the land measures appropriately 140 acres and that the correct value is approximately Sh400 million.”

In their ruling, the appellate judges regretted that the case had resulted in a ten-year delay in attaining justice. It has also, therefore, offended the public interest, reinforced by the current emphasis on efficiency and economy in the conduct of litigation in the interests of the parties and the public.

“Perhaps we should add that this case is also a serious indictment to the counsel handling the matter... They could have set it down for hearing in the superior court, however, they failed to do so and as a result, perhaps the free use of the prime land measuring 140 acres has been hampered, obviously due to what appears to have been a lapse on the counsel and poor case management,” the ruling read.

Present pleadings

“For the above reasons we allow the appeal to set aside the order of the High Court and substitute an order dismissing the Originating Summons with costs to the appellant. Considering what we said earlier that there was delay in the superior court in taking steps to have the matter heard, we express our displeasure concerning the advocates’ conduct. In future this court might be compelled to penalise advocates found guilty of that behaviour,” the ruling read in part.

After losing in the Court of Appeal, Howard returned to the High Court to bar Muchanga from demanding rent from him; a case that Justice Mbogholi dismissed paving way for his eviction.

“In the present pleadings, there is no doubt whatsoever that it is the repetition of the same claim that has been adjudicated upon. One would be excused to conclude that HCCC No.133 of 1998 (OS), having taken so many years before it was laid to rest on June 6, 2009 by the judgement in Civil Appeal No.25 of 2002, the plaintiff still hopes that the fresh case would take the same course. This indeed would amount to an abuse of the court process. I know it is a drastic step to take, but a drastic step must be taken to save judicial time and cost of litigation. The suit before me must, therefore be struck out for being res judicata and an abuse of judicial process,” read Justice Mbogholi's ruling.