Appellate court stops eviction of families from Kihiu Mwiri land

The Court of Appeal has stopped the eviction of families from the 64-acre piece of land in Murang'a county that the Kihiu Mwiri Farmers Company Limited is claiming.

“That an order be and is hereby issued staying the execution arising from the judgment entered on August 23, 2024 pending the hearing and determination of the Appeal filed by the Defendant/Applicants herein,” the court ruled.

The eviction order was issued by Murang’a Environment and Lands Court Judge Lucy Nyambura on September 23, 2024, in a case filed by the company’s chairperson Pharis Mwangi in 2021.

“Having analyzed the evidence as above, this court finds and holds that the Plaintiff has proved its case against the Defendants herein on the required standard of balance of probabilities,” said Justice Nyambura.

Kihiu Mwiri had sued 11 people namely; Mary Gathoni, George Kihoi, Hanna Njeri, Patricia Wanjiku, Esther Kawe and Naomi Goko.

Others are Baariu John, James Ngugi, Joseph Kariri and Reuben Gakami.

Its chairperson Mwangi testified that the company was registered as the owner of LR.No13866/29 in 2013 but misplaced the original title deed.

They later obtained a Provisional Certificate of Title dated December 11, 2014.

Mwangi further claimed that Gathoni and Kihoi were trespassers on the land and had no legal interest in it.

He added that they had encroached on Kihiu Mwiri’s land and were cultivating without the company's authority.

Kihoi in his reply opposed the suit calling for its dismissal.

He filed a counterclaim and said that the application eviction was hazy and unclear on who it was referring to between the 11 people they had sued.

According to Kihoi, the company approved the sale of part of the land they were now claiming and wanted him evicted.

The other defendants Gathoni, Njeri, Wanjiku, Kawe and Goko, Baariu, Ndirangu, Kariri and Gakami filed a joint statement of defence denying the company allegations.

They told the judge that the company was formed in 1971 to allow them to buy land from British settlers.

In 2015, they claimed that Kihiu Mwiri had about 6,200 members and was registered as the owner of 1,300 acres of land where it did large-scale coffee farming.

They further alleged that the company fell into large loan debts and tax liabilities and Kihiu Mwiri decided to sell some of its land to clear them.

The 10 said that Kihiu Mwiri engaged the services of Haverest Lands Investments Limited to dispose of some of its land through bulk purchase and subsequent resale in smaller units to individuals to raise the money needed.

They claimed that Haverest bought land parcel LR.No9214/7 from Kihiu Mwiri and it was divided and sold to them.

They told Justice Nyambura that by 2013 eight directors of the Kihiu Mwiri had been abducted or killed due to irregular dealings in the management and leadership contest.

In response to the killings, they said that President Uhuru Kenyatta issued a directive on the management of its affairs and distribution of land.

After the directive, they claimed that the Registrar of Titles took over Kihiu Mwiri’s management including the distribution and issuance of title deeds to members.

They said this process is ongoing and was being conducted by the Ministry of Lands and Physical Planning and that Haverest made presentations for the issuance of titles which was yet to happen.

They added that the Registrar had cancelled titles previously held by Kihiu Mwiri to issue new ones due to the subdivision that had taken place.

According to the defendants that presidential directive meant that all directors of Kihiu Mwiri had been suspended and so the company had no serving directors in office.

They claimed that the case had been filed by imposters since the director’s functions had been taken over by the government.

They wanted Haverest to join the case but it never did.

In their evidence, they presented a document giving the history between Kihiu Mwiri and Haverest and Breeze Investments Limited over the sale of its land.

They all said that they had purchased their pieces of land from Haverest.

According to them, Muturi Njoroge and Company advocates oversaw the sale of plot No. 145A by Elizabeth Kithiira to Dickson Kang’ethe for Sh2 million on September 20, 2018.

In another instance, they tabled a document dated August 28, 2020, by the same law firm where Catherine Wainoi sold Plot No.127, which was approximately an acre within LR No.9214 to James Ngugi for Sh2.5 million.

They added that a December 18, 2020, letter from the same law firm, Wainoi acknowledged receiving Sh1.2 million from Ngugi.

Justice Nyambura noted that Kihoi testified on his behalf and did not call any witnesses, his co-accused despite filing their defence did not participate in the case.

In his testimony, Chairperson Mwangi said that he became Kihiu Mwiri’s chairperson after the killing of Peter Kimani Kuria and three other directors, which left only four directors to run it.

He did not provide any minutes despite saying that the four directors held a meeting that led to the decision to file the case.

According to Mwangi, the three other directors were not a party to the case since the decision to file the case was a quick one.

Even though he is the chairperson, Mwangi did not provide the CR12, which shows the names of the directors of a registered company, claiming that it was in the hands of their lawyer.

He said that the defendants invaded the 64 acres but admitted not knowing the size of the land occupied by Kihoi as he did not ascertain it.

According to his testimony, Kihoi had built a water tank on the land he occupied and he sought to have the case stopped to allow him to find out who defrauded him.

Mwangi claimed that the defendants had been defrauded by Haverest as it does not own any land in the area.

He said that if other people were occupying the land they should be joined in the case while he admitted not knowing the pieces of land occupied by the defendants individually.

He denied that the government cancelled any titles held by Kihiu Mwiri adding that members received individual tiles for the plots they occupy.

Mwangi denied that he knew Kihoi, he said that he did not know what section of the land he occupied and had never done business with him.

In his testimony, Kihoi said that he does not occupy the 64 acres.

He testified that he is only aware of Kenyatta Farm where he purchased land from people who had bought from Haverest between 2012 and 2013.

After the purchase, Kihoi claimed that he moved to the land immediately.

He said that the land in question was occupied by about 120 people and he wondered why Kihiu Mwiri had chosen to sue only 12 people.

Kihoi denied being a trespasser and urged the court to come to the defendant’s aid so that they could obtain title deeds.

He testified that Kihiu Mwiri should have sued Haverest and not the defendants who had purchased land from the company.

Kihoi claimed that Kihiu Mwiri does not own any land, but instead, it belongs to members.

He claimed to be a victim of Kihiu Mwiri’s well-known notorious activities that have victimized innocent purchasers of land which led to government intervention.

Justice Nyambura said that Mwangi was Kihiu Mwiri’s chairperson given past cases where he testified as such.

“Consequently, this Court is satisfied that PW1 is Not a busybody or an imposter, and he is possessed of the necessary legal capacity to commence the instant suit for and on behalf of the Plaintiff.”

She ruled that no evidence was tabled to show that Kihiu Mwiri was a non-existent company.

She noted that the documents tabled by the 10 defendants bore the letterhead of “Haverest Land Investment Ltd” which differed from “Haverest Land Investments Limited” and there was no affidavit to verify whether the two are the same company.

The judge noted that Elizabeth Kathiira sold the same piece of land to two people namely James Ngugi and Dickson Kang’ethe.

“From the foregoing, it is Noteworthy that the same Vendor is conveying the same parcel of land to two different buyers separately on 20th September 2018 and 28th September 2018.”

Justice Nyambura said that the document table showed that Kihiu Mwiri had sold part of its lands to Breeze and Haverest does not indicate the name of and signature of the director who signed on behalf of Kihiu Mwiri.

She added that there was no evidence tabled to show that Kihiu Mwiri had contracted Haverest to sell land on their behalf.

The judge said that the gazette notice that had been tabled does not have the power to cancel the title deed belonging to Kihiu Mwiri as that can only be done by a court of law.

She noted that despite Kihoi saying that he had purchased the land Kihiu Mwiri’s knowledge, he did not attach any evidence showing nexus between the company and Haverest.