State told to surrender deeds for 755-acre land meant to settle IDPs

The High Court in Nakuru has ordered the government to surrender the title deeds to a 755-acre parcel of land bought to resettle families displaced by the 2007/08 post-election violence.

Justice Joel Ngugi, Appellate Court judge, issued the orders following a suit filed by eight sisters, their sister-in-law, and a niece against their brother at the High Court.

Irene Kanyi Mwangi and nine others, being beneficiaries of the estate of Benjamin Wamanji Njoroge, contested the sale of the land to the government claiming they were not consulted.

The decision by the court spells doom for 266 families settled on the parcel of land.

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Ms Kanyi and her sisters claimed their brother Philip Kamau Njoroge transferred Ndonga Farm without consulting them in any way. Kamau had been appointed the administrator of the estate on December 1997.

The ten had named the Attorney General, Principal Secretaries in the Ministries of Land and Settlement, Ministry of Special Programmes, and their brother as respondents in the case.

Philip Kuria Njuguna and 256 others representing the IDPs settled on the land and were named as interested parties in the case.

"The respondents are hereby ordered to surrender to this court pending the conclusion of distribution of the estate of Benjamin Wamanji Njoroge (deceased), the original title deed (to) Ndonga Farm Subukia, LR No. 6507/IR No. 2195," read the orders of the court issued in a judgment delivered on January 26.

Court documents indicate the family, after initial disagreement among family members as to the existence and validity of a will of the deceased, all the parties converged on its validity and consent was prepared to compromise all the pending applications in the succession case.

On December 2, 1997, all the beneficiaries of the estate appeared in court and consented to the mode of distribution in a written will of the deceased dated May 29, 1993.

The court noted that ordinarily, this would have ended the matter. The administrator (Philip Kamau Njoroge) was expected by law to ensure the distribution as per the Certificate of Confirmation and facilitate the transmission of the assets to the beneficiaries.

Kamau and Phares Muchunu Njoroge, deceased, were each to get 200 acres. Owen Ndungu was to get 220 acres, while the eight sisters were to get each 16.2 acres.

"In this case, however, this did not happen. Instead, on July 29, 2011, the administrator entered into an agreement for the sale and transfer of the parcel of land known as Land Reference No 6507 measuring 755 acres, the "Ndonga farm" to the Settlement Fund Trustees.

The land was bought for the benefit of the Internally Displaced Persons," read the judgment of the court in part. The land was thereafter subdivided to the IDPs who are in different stages of perfecting the possession, including constructing residences thereon.

The sale transaction purportedly entered between the administrator of the estate and the government was not reflected in the Certificate of Grant and no application to rectify the grant was made in the succession cause. The sisters claimed they were shocked to learn that their brother had entered into a sale agreement and transferred the farm.

The eight sisters, their sister-in-law, and niece said they were shocked to receive a letter dated August 8, 2011, from the law firm of Rachier and Amollo Advocates claiming that the law firm had received instructions from their brother to sell Ndonga Farm and distribute the proceeds to heirs of the deceased.

They said they never consented to the sale and termed it un-procedural and illegal.

Stung by the sale, they filed a case at the Environment and Lands Court in Nakuru claiming the actions by their brother and the government violated their fundamental rights and freedom. They sought orders restoring their property rights to Ndonga farm as beneficiaries.

The petition was dismissed on May 26, 2022, as the court noted it never met the threshold of a Constitutional Petition. The sisters were however granted leave to institute a civil claim by way of plant within six months of the judgment.

The sisters filed another suit on July 17, 2022, seeking orders that the original title deed is surrendered. They also wanted their brother removed as an administrator.

The IDPs on learning of a new suit filed in court filed a preliminary objection. They sought among other orders the exclusion of Ndonga farm from the succession proceedings of the estate of late Wamanji. They wanted the property to be excluded from the assets of the estate.

Justice Ngugi in determining the case noted that the AGs office never filed any response despite being served. The judge said the question of whether Ndonga Farm has been successfully sold off or not is still live and undetermined.

"I am of the view that the applicants (the sisters) have placed sufficient material before this court that the sale and transfer of the property were irregular and illegal," he stated.

Ngugi noted that there is a question as to whether an administrator of an estate can directly transmit property to a third party vide Power of Attorney before it has first been transmitted to the beneficiaries.

The judge stripped Kamau of the administration of the estate citing that he acted un-procedurally.

"The only thing that comes out clearly from this history is that the administrator acted un-procedurally and illegally and no longer deserved to remain administrator of the estate," he stated.

He also dismissed the IDPs application to have Ndonga Farm excluded from the available assets available for distribution to beneficiaries of the estate of Benjamin Wamanji. The certificate of confirmation of grant, he noted, was already issued on December 2, 1997.

"It is not possible to exclude Ndonga Farm as part of available assets for distribution when the distribution had already occurred," he said.

The best the IDPs could do, he noted, is hope for a rectification of the Certificate of Confirmation of Grant to modify the mode of distribution. He went on to dismiss the IDPs preliminary objection and Notice of Motion dated July 1, 2022.

Irene Kanyi Mwangi, Zipporah Waringa, and Mary Wangari were appointed as administrators and the court ordered for rectification of the grant.