A family in Kilifi County wants to reclaim 21.13 hectares (52 acres) worth an estimated Sh500 million, citing the breach of a sale contract dating back to 1991.
Khamis bin Mbaruk and his brother Nassor bin Mbaruk want Justice Julius Munyao to order Nuru Omar to give them back the 21 hectares, which forms part of 40.49 hectares they sold to her husband, Ali Amir, or pay for it at current market rates.
Amir died before the sale agreement was finalised, leaving the process to his wife, Ms Nuru.
In a notice of motion filed through their lawyer Daniel Ngonze, the brothers want the court to issue a temporary injunction stopping Nuru from further subdividing and selling off the property pending the determination of the case.
They further want the court to direct the Kijipwa Police Station boss to ensure compliance to the orders and to provide security.
Mr Khamis said through a sale agreement dated July 12, 1991, he and his brother agreed to sell Amir 40.49 hectares at Sh900,000.
Amir was to pay Sh500,000 upon signing the agreement and the balance on completion of the land transfer.
Khamis said they received Sh300,000 from Amir on October 16, 1990 through Marende and Taib Advocates, and another Sh129,350 on May 14, 1997 from Amir’s wife through Swaleh and Company Advocates.
“We were paid a total of Sh429,350 and left a balance of Sh470,650 that would be paid by Nuru upon successful completion and handover (of) documents,” said Khamis.
He added that they handed to Nuru a complete set of documents, including a duly executed transfer dated August 7, 1997.
“My brother wants Nuru to transfer back the portion of 21.13 hectares unpaid for, or alternatively pay for it,” said Khamis.
He added that Nuru has failed to pay the balance of Sh470,650 since they transferred the title to her in 1997.
In their court documents, the brothers accuse Nuru of transferring the land to her name and subdividing it without following proper procedure, while neglecting to complete the transaction.
Khamis said Nuru’s refusal to honour the contract has prevented them from fully benefiting from their investment in the transaction.
However, Nuru, through her lawyer Mogaka Omwenga, denies the allegations against her.
She insists that Khamis and Mr Nassor were paid Sh910,000 in instalments either in person or through various advocates.
She said a final payment of Sh129,350 was made on May 14, 2019, and a statement of account was later signed by Nassor, acknowledging receipt of the instalments.
“The two brothers were further paid at various times after the completion of the said transaction monies amounting to Sh400,000 by Messrs Gachiri Kariuki and Company Advocates, a fact acknowledged by Nassor,” said Nuru.
She added that Nassor was given ex-gratia payments for a period of five years by her advocates towards the education of his son.
She said if the brothers never received the full amounts paid through their advocates, then their claim lies against the concerned advocates.
In her response, Nuru further said the signing of a transfer in law is an acknowledgement of receipt of payment of the full purchase price.
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