Why Kevian boss wants Supreme Court's intervention in Malindi land dispute

Kevian Industries Chairman Kimani Rugendo at a past event. [File, Standard] Soft drinks mogul Kimani Rugendo has sought the Court of Appeal's green light to move to the Supreme Court to challenge an order requiring a long-running land tussle between him and a British national, Sheila Loveridge, to be heard afresh. In his application seeking certification that the dispute raises a matter of public importance, the Kevian Industries proprietor argues that Justices Francis Tuiyott, Lydiah Achodeh and Aggrey Muchelule erred in finding that only the judge who heard the witnesses should determine the case. Kevian Industries is the manufacturer of Pick and Peel juices. Kimani's lawyer, Phillip Nyachoti, argued that the order by the three judges is likely to create chaos, as it would require judges to transfer files from their previous stations upon redeployment. The case was first filed in 2009. According to him, the judges should instead have directed that Justice Charles Yano conclude the case, rather than ordering a fresh hearing. He asserted that no party was at fault, as both the hearing and delivery of judgment were disrupted by the transfer of Justice Yano, alongside Justice Lucas Naikuni. "If left unclarified, the reasoning in the judgment risks normalising retrial as a default remedy for procedural irregularities, even where no party is at fault and no demonstrable prejudice has been established. This carries significant implications for litigants, witnesses, judicial resources, and public confidence in the finality of court processes, particularly in land and other complex civil disputes that often span many years," argued Nyachoti. Justices Tuiyott, Achodeh and Muchelule ordered that the case over the Malindi property be heard by a judge other than Justices Naikuni and Yano. According to the three judges, Justice Naikuni ought to have allowed Justice Yano to determine the dispute, as he had heard all the witnesses. However, they said it would also be unfair for Justice Yano to conclude the matter, given the lapse of time. They observed that four years had passed since he last handled the file. "While no aspersion should be cast upon Naikuni, J. for taking over this matter at such a late stage, we have come to the conclusion that justice may have been better served had the judge who heard all the witnesses and who was still available to prepare the judgment concluded it," the bench, headed by Justice Tuiyott, said. Kimani holds a title dated December 8, 1978. However, Loveridge also holds a title to the same property. The businessman told the court that he bought the land from one Mr Karagani in 1974 for Sh5,000. According to him, during the finalisation of the land adjudication process in the area, a list of allottees was prepared by the Department of Land Adjudication, and his name was included and appears in records held in Nairobi. He stated that he was later issued with a certificate of title. Kimani further told the court that sometime in 2008 he learnt that another person had occupied the parcel of land and carried out developments on it. This person, he said, was Loveridge, who allegedly bought the land from Dr Kawaljeet Singh, who had purchased it from Swaleh Mohamed and Hamisi Ayubu. He asserted that land registrar Hashim Got was at the centre of the controversy, alleging that he illegally issued a green card to Swaleh and Ayubu, as well as a subsequent lease certificate. He argued that the registrar ought to have known that they were not the registered owners. In response, Swaleh and Ayubu said they were born in Kwale and had occupied the property as its original and first occupants. According to the two, at the time of adjudication, they submitted their names for registration as the owners of the land and later sold it to a third party. They argued that it was not possible for Kimani to own the land without them transferring it to him. Hashim denied allegations of fraud or wrongdoing, telling the court that he carried out his duties professionally and without favouritism. In his evidence before the trial court, he explained that Galu Kinondo was a registration section within the meaning of the Land Adjudication Act. According to official records, he said, Swaleh and Ayubu were the registered owners of the disputed property. jmuthoni@standardmedia.co.ke Dr Singh told the court that he resides in Diani. He said he bought the land in 2004 and, before doing so, confirmed that it was unoccupied and properly registered in the sellers' names. He stated that he later sold it to Loveridge for 700,000 euros (about Sh107 million at current exchange rates). Loveridge testified that on or about April 2008, while she was in the United Kingdom, she and her husband were informed by their guard that certain individuals had come to their home claiming ownership of the land on which it stood. That marked the beginning of the now protracted court dispute.

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