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Row over property ownership featuring Kibaki and partners drags on

Mwai Kibaki's partners are laying claim to Mathingira Wholesalers Company Limited House, a commercial one-storey building in Nyeri town. [File, Standard]

A row pitting former President Mwai Kibaki and the families of his business partners against some investors continues to simmer at the High Court.

The investors are laying claim to Mathingira Wholesalers Company Limited House, a commercial one-storey building in Nyeri town.

Mr Kibaki and his eight childhood friends jointly acquired the prime property in 1976.

The partners are Kimwatu Kinyungu, Gadson Gitonga, Samuel Githinji Kibaki (the former presient’s brother), Kiiru Gachuiga, Kibera Gatu, Philip Gichuhi, Muruthi Ng’ang’a and Francis Gathung’wa.

In 2008, a dispute over the ownership of the company arose between them and another group of directors led by Peter Munuhe, Sammy Kiiru and James Kanyi who also claimed to have bought shares in the firm.

Munuhe, Kiiru and Kanyi had claimed that by buying shares in Mathingira, they automatically became legitimate shareholders and directors of the company.

Kimwatu, Gachuiga, Gitonga, Gatu, Githinji, Gichuhi, Ng’ang’a and Gathung’wa have since died, leaving Kibaki as the only surviving original shareholder.

It’s against this background that Kibaki and legal representatives of the deceased shareholders have moved to the Environment and Land Relations Court with a list of prayers to unlock income generated from the building.

In a fresh application before Justice James Olala, the applicants through lawyer Gibson Kamau Kuria, have among other orders sought to be allowed to enjoin dependents by substituting four deceased partners. Those seeking to join the case include Daniel Githinji for Gitonga and Egedios Mwangi and Mwangi Kibera for Gatu.

Others are Pauline Wangui Wanyoike and Jane Wanjiku for  Kinyungu, while Peter Weru and Jecinta Mathenge are suing to be recognised as representatives of Gichuhi.

Ng’ang’a Muruthi and Jecinta Njoki are also suing to become representatives of Muruthi Ng’ang’a.

Lawyer Kuria said Gatu and Gitonga died during the pendency of the suit but their legal representatives were never substituted.

Mathingira Wholesalers Company Limited House. [Kibata Kihu, Standard]

“Gachung’wa also died during the pendency of the appeal. Legal representatives of two other namely Gichuhi and Ng’ang’a are not enjoined,” the lawyer added.

Kuria, appearing for Kibaki, has also applied for the release of rent held in a KCB account since 2014 for distribution to the beneficiaries.

He noted that on February 18, 2013, the court ordered that the rent which the building yielded be paid to an interest-earning joint account under his (Kuria) and Ms Lucy Mwai’s law firms.

Kuria is seeking the nod of the court to distribute the income under his law firm.

All the eight co-owners, he observed, including those who were not parties to the counterclaim, are beneficiaries of the Court of Appeal judgement, hence need to be enjoined for the purposes of the execution of orders.

“The families of the defendant wish to access the rent from which they have been kept away for 14 years,” Kuria avers in a matter set for mention on February 7.

He said in light of the Court of Appeal ruling in Civil Appeal number 6 of 2017, the court ruled in favour of Kibaki and his friends by giving them control of the prime property.

“The defendants to the counterclaim never had any locus standi to bring the suit. They were hijackers of a vehicle that has been restored to the order by the Court of Appeal. The owner of the suit property are those who purchased it in 1976,” Kuria says in his latest application to the court. 

In her judgement on October 12, 2016, Justice Lucy Waithaka declared the Kibaki team and the newly incorporated members as legal directors of the company.

Appellate judges Justices Fatuma Sichale, Agnes Murgor and J Kantai, however, on March 21, 2018, also ordered two sets of directors to jointly continue managing the company.

On November 15, 2013, the ownership battle saw Kibaki testifying in court, becoming the first retired president to take the witness stand.

When the former Head of State was cross-examined for almost an hour before Justice Anthony Ombwayo, he told the court that unscrupulous people had taken over the firm and had withheld rent proceeds since 2008.

The one-time Othaya MP asked for an injunction to stop the company from collecting rent or dealing with the building until the matter is determined.

Justice Ombwayo declined to issue the court order, saying such a decision would divide the two groups.