No end in sight to land row started in 1974 by sons of tycoon Wangige
| Dec 24th 2021 | 8 min read
One of the most illustrious goat dealers on the western side of the city has been gone for 65 years.
Although he never occupied any public office, Wangige Kimotho’s name is immortalised for he bequeathed his name to one of the most populous neighbourhoods in the city–Wangige, a growing satellite town, which is about 16 kilometres away from Nairobi.
Wangige himself was not a lawyer, but his name is contained in tonnes of judgements and rulings that have given 19 High Court judges sleepless nights for 47 years.
The story of the illustrious Wangige and his 55 acres lives through his sons and daughters who have been unable to agree how to share out five acres of this parcel for almost half a century.
Wangige had four wives–Gitithi, who was also known as Njeri; Tagatu who was also known as Wanjiru; Ndoboro, and Wairimu (Wandingoiya) who was the youngest wife.
The patriarch had an unconventional way of passing on his wealth to his children. Instead of splitting his estate equally to each house, he required each of his sons to go gather either sheep or money and bring to him. What one brought determined the acreage they got. Some inherited 16 acres, others inherited four, others nine.
Peace and harmony
For some time there was peace and harmony among Wangige’s sons. But not for long because one branch of his family was unhappy with their inheritance. This started a legal dispute that has persisted for 47 years.
Trouble started in Wairimu’s house when her three sons contested the five acres they had been gifted.
The siblings–Muthanji, Mbugua and Nyoro–all live on the contested piece of land and at one point, a dispute arose over whether Muthanji, who is the last born, was holding the land in trust of Nyoro and Mbugua. He insisted that he solely owned the land.
What started as a small dispute has persisted for 47 years and morphed into a battle that moved from a group of elders to the courts and ultimately ended at the Court of Appeal.
Among the 19 judges who heard and determined this case is Chief Justice Martha Koome. The only other case that has surpassed this number is one filed by the dependents of former Cabinet Minister Mbiyu Koinange whose dispute, which lasted 24 years, was listened to by 25 judges.
The asset at the centre of the protracted dispute is the parcel of land registered as LR No Kabete/Kibichiku/208 in Muthanji’s name.
Before the court duel, a council of elders tried to reconcile Muthanji and his two siblings but a truce sealed with the brothers eating a goat together did not last long.
On September 18, 1974, Mbugua and Njuguna (Nyoro’s son) moved to Nyeri High Court and sued Muthanji, claiming he had dispossessed them of their ancestral land. Nyoro had died by the time the case was filed.
They claimed that they had lived in the contested land from 1956 bequeathed to them by Wangige. They were seeking to have each of them get a third of the land. Alternatively, they asked the court to find that they were entitled to the land through adverse possession.
At the same time, the two were asking the court to split Sh954 that Muthanji had received from the government as compensation for the land acquired for the construction of a public road. They wanted Sh636 from him. Mbugua and Njuguna had then hired Hamilton Harrison and Mathews and their lawyers.
In court, Muthanji, Mbugua and Njuguna again signed a consent to have the case arbitrated by elders. On July 21, 1981, High Court judge Mathew Muli sent them back to the elders.
The elders directed that Mbugua and Muthanji would receive two acres, while Njuguna was to be allotted one acre.
The resolution was adopted by the court in December 1981. Aggrieved by the decision of the elders, Muthanji filed an application at the High Court seeking an order setting aside the arbitrator’s award.
On June 3, 1982, they again agreed to set aside the elders’ award and allow the court to determine the dispute. Justice Emmanuel Okubasu issued an order that the case should be heard on a priority basis.
Muthanji, who was represented by Bali-Sharma and Bali Sharma Advocates, denied that he was holding the land in trust for his two brothers, having inherited it from Wangige. He, however, admitted that he had received Sh954 from the government but contested that it was on a basis that he was a trustee.
Muthanji argued that although the two lived in the contested land, they were not entitled to it and ought to leave.
The case was set for hearing on May 12, 1983. However, Justice VV Patel dismissed the case and ordered that Mbugua and Njuguna not to build permanent houses on the disputed land.
They appealed before Justice Phillip Tunoi and agreed to again have Kikuyu Division District Officer arbitrate the case.
Justice Tunoi issued the orders on January 16, 1991. He gave the parties 150 days to settle the issue.
The judge then set aside the award by the Kikuyu DO through a consent by the parties and this time ordered that the case be arbitrated under the watch of Kiambu DO. Each party was to appoint two elders on their side who would help the DO to arrive at a decision. This, too, did not bear fruits.
Court records show that Kiambu DO, who heard the case without elders, ordered that Muthanji gets two acres while Mbugua and Njuguna each gets 1.5 acres. Mbugua and Njuguna were happy with this decision and urged the court to compel Muthanji to transfer the land.
However, Justice Mary Ang’awa set aside the award, noting that the DO was the wrong person to solve the arbitration and that he had proceeded without four elders as had been directed by the court.
While the case was still lying in the High Court, Njuguna Nyoro died on October 5, 1998 and Muthanji died 11 years later, on December 16, 2009.
In 1998, Mbugua’s son, David Njuguna, also died. A dispute arose on whether he was to be buried in the disputed land. However, they consented before Justice JVO Juma that he would be buried on the part he was occupying on condition that in the event the final judgment was delivered, and he lost, he would be exhumed and reburied elsewhere.
The fight transitioned to the second generation. Muthanji was replaced by his sons James Mbugua Muthanji and Joseph Gachuhi Muthanji while his widow Mary Wambui Njuguna replaced his nephew Njuguna.
In 2013, Mbugua also passed away and his daughter-in-law Nancy Wanjiru joined the case.
Again James Mbugua died, leaving Gachuhi, Wambui, and Wanjiru in the ring.
At some point, Gachuhi asked Justice Joseph Sergon to find that the case had abated but he declined on December 16, 2013.
Aggrieved, Gachuhi moved to the Court of Appeal, arguing that Wambui had joined in 13 years after the death of her husband. His argument was that she ought to have come in within one year after the death of her husband.
Although she admitted that the case was filed out of time, Wambui pleaded with the court that she had sought to revive the case. She asked Justices Alnashir Visram, Martha Koome (current Chief Justice) and Otieno Odek to affirm Justice Sergon’s ruling.
Delayed for seven years
They, however, set aside Justice Sergon’s orders on November 25, 2014, noting that Wambui had not explained why she had taken long. They said she had delayed for seven years.
“We find that the judge misdirected himself in this case by allowing the application for substitution. Further, the respondent conceded that an application for extension of time to revive the abated suit had never in fact been made,” the court ruled.
The fight did not end there. Again, Wambui and this time Wanjiru, moved to the lands court in 2015 seeking an extension of time. The two argued that it was only logical for the case to be heard conclusively. Armed with Court of Appeal orders, Gachuhi asked the court to dismiss the application.
Justice Lucy Waithaka ruled that the case by Mbugua and Njuguna had abated. She went ahead to remove any caution placed by Mbugua and Njuguna on the land.
The orders by Justice Waithaka closed one round of battle.
The battle, however, shifted to the family court in Nairobi. The case was about succeeding Muthanji.
Wanjiru asked the court not to allow Muthanji’s children to inherit the land. According to her, the land was subdivided into three portions by elders in 1970, adding that Muthanji held the property in trust for his brothers.
She complained that there was a risk of being disinherited and evicted if the court did not intervene. She also cited the 1974 case, saying it had not been settled.
This time, Wanjiru was joined by Moses Muturi Mbugua. He claimed that the land was subdivided by Mwathi Wangige, Gikaru Wangige, Samuel Wangige, Maina Gathungu and Mbugua Nyaburura.
Justice Roselyn Ougo dismissed the application after finding that the case had been settled by among others, the Court of Appeal. This was on March 24, 2017. Two weeks later, on April 11, 2017, Wambui filed her application raising the same issue.
On May 6, 2019, Justice Asenath Ongeri settled the second bout by dismissing Wambui’s application.
A month later, on June 4, a new case emerged, this time in Thika, filed by Mbugua’s grand children George Mbugua, Bernard Wangige, Grace Njuhi and Rose Wanjiku. They sued Gachuhi and Mbugua as the administrators of Muthanji. However, Mbugua had since died. This is the third generation in court.
The case was filed before Justice Lucy Nyambura Gacheru.
They argued that they were entitled to two acres through adverse possession. According to the four, they had lived on the piece of land for over 12 years. They added that since 1951, there were distinct boundaries, indicating where each family resides and each family had developed each property.
Gachuhi raised an objection, citing the orders by the Court of Appeal and Family Court.
However, Justice Gacheru overruled Gachuhi. She said that this case was different as the others dealt with customary trust and distribution of the estate. According to the judge, the case ought to be heard on merit.
The judge said that for the court to determine whether the case had already been settled or not, the court ought to ascertain facts, which could not be done in an application.
This was in January last year.
The judge also ordered Gachuhi to pay the cost of the application.
In August last year, Gachuhi’s body was found in a forest in Narok County. It had no head and an arm. He is suspected to have been killed but the motive and are yet to be known.
His own farmhand, Geoffrey Koigi, Kapatira was arrested and is now facing murder charges at the High Court in Narok.
Gachuhi’s children, too, will now join the battle that their grandfathers fought.
Tributes pour as Ruto’s chief of staff Ken Osinde is laid to restOsinde, 59, died on December 10 at the Nairobi Hospital after a short illness.
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