Man’s kin, land buying company (Endao Ltd) fight over 500-acre parcel in Nakuru

By Patrick Kibet

NAKURU, KENYA: Members of a land buying company in Nakuru are beginning to despair over the process of reclaiming a 561-acre parcel they ‘lost’ in court 13 years ago.

The parcel, situated in Nakuru North District, has been at the centre of a row between Endao Ltd, which has more than 700 members, and the estate of Njuguna Mwaura Mbogo. Endao lost the land to Mbogo in 2003 when the High Court in Nairobi accepted his claim of adverse possession.

This is a method of gaining legal title to real property by the “actual, open, hostile and continuous possession of it to the exclusion of its true owner for a given period”.

Mwaura moved to court in 2001 seeking to be declared a registered owner of LR 10581/Nakuru through a transfer from E K Banks Limited.

He succeeded in convincing the court that he had lived on the land unchallenged for more than four decades and was, therefore, its rightful owner.

Wthout interruption

“The plaintiff lived on the property without interruption since 1959,” the judge noted in his ruling, adding “He, therefore, acquired prescriptive rights over it.”

Endao Company Ltd challenged the court order, saying another case concerning the ownership of the same piece of land was continuing at the Nakuru High Court when Mwaura obtained the orders.

Then High Court Judge Philip Ransley allowed their application on October 6, 2004 and restrained Mwaura from alienating, transferring or selling the land until hearing of the application. However, Mwaura died on April 29, 2006, before the case could be heard. The case stopped a year later when he was not substituted in Endao Ltd’s application as required by law.

Five years later, Endao Ltd moved to revive the case by substituting Mwaura with the administrators of his estate, Elizabeth Nyambura Njuguna and Francis Kamau Njuguna. In a ruling delivered in March last year, Justice Rose Ougo dismissed their application to substitute the plaintiff as premature and incompetent since the case had not been revived on the first instance.

Another ruling delivered on April 29 this year dismissed attempts by Endao Ltd’s directors to revive the case. Justice John Mutungi noted that substitution of the plaintiff would revive the suit, but the applicants had failed to make an application for the court to give appropriate direction.

Endao have maintained that they acquired the piece of land from a German company, Solai Kaffe Plantengen Verwaltung GMBH in November 1987 after paying Sh4,811,700. Shadrack Cherogony, the director of Endao Company, says the members have failed to get justice from the courts due to errors by their lawyer. According to Mr Cherogony, the case was aborted after the late Mwaura was not substituted within a year as required in law. He says an application to revive the case in April 2007 was withdrawn in June 3, 2008.

“The case aborted because the lawyer failed to advise us accordingly,” he notes. The Standard On Saturday visited the suit land a few kilometers from Bahati police station and found a handful members living in makeshift structures on fertile land once covered with coffee bushes.

For sale

The fallow land has been offered for sale in deals Endao says are dodgy. They claim rent and county council rates clearance certificates obtained in July 2003 are “fake”. Cherogony says the controversy has not stopped Endao from selling some of the land to the Rift Valley Service Board in 2008.

“The sale was never challenged or stopped because, as the real owners, we have valid documents,” says Mr Cherogony. “Interestingly, we cannot farm in this land since the ‘owners’ have access to court.”Endao members allege that the Provincial Administration is biased in favour of the group claiming ownership. They are claiming millions of shillings in property allegedly destroyed when new settlers invaded the land.

“This used to be a coffee plantation, but when the dispute arose the property was damaged,” says Mr Cherogony. Area MP Kimani Ngunjiri says he supports Endao’s quest to get justice.