Firm linked to former CS wins land battle against Kihiu Mwiri

A section of land owners from Kihiu Mwiri Farmers Company protesting outside the Ministry of Lands offices over fake title deeds. [File, Standard]

A company linked to former Transport Cabinet Secretary James Macharia has won a protracted court battle against troubled land-buying company Kihiu Mwiri.

Environment and Lands Court ruled that Breeze Investment Limited legitimately bought 134 acres after Kihiu Mwiri directors failed to pay Sh25 million loan taken between 1979 and 1992 from Standard Chartered Bank.

Justice Lucy Gacheru stated that there was evidence to show that a majority of Kihiu Mwiri members unanimously agreed that a part of the property ought to be sold in order to pay off the loan.

The total acreage of the land was 1,285 acres.

According to the judge, the members agreed to sell off 129 acres, of which Sh25 million would go to the bank, Sh3 million was to be paid for execution of the sale agreement and the remaining Sh7.5 million was not to be released until a successful transfer to Breeze was done.

Lawyer Njoroge Kibatia represented Breeze.

At the time the property was transferred, Peter Macharia, who was Kihiu Mwiri’s chairman signed the agreement and Breeze paid the full amount.

The judge also found that Paul Muhuhi and Pharis Mwangi also acknowledged that Breeze had bought part of the property from Kihiu Mwiri farmers.

Muhuhi was killed by unknown assailants on June 28, 2015.

“The sale agreement entered into between the plaintiff (Breeze) and the first defendant (Kihiu Mwiri) in the counter-claim contains all the elements of a valid contract. The contract was also reduced into writing and it is evident from the acknowledgment letters that the plaintiff paid up the entire consideration,” said Justice Gacheru.

She also noted that although Kihiu Mwiri had claimed that Breeze had made a deal with unknown persons, they did not provide evidence to prove the same.

The judge stated that it was puzzling for the company to turn around to allege that its representatives during the sale agreement were not its directors.

“Any allegations invalidating the contracts ought to have been brought to the attention of the court, but there was none. Therefore, it follows that the vendor was paid the entire consideration, which they acknowledged receipt. Against any backdrop of evidence, the plaintiff in the counterclaim has on the balance of probability established to the satisfaction of this court that it entered into a valid sale agreement,” she said.

In the case, Kihiu Mwiri sued Breeze, the director of surveys, registrar of titles and commissioner of lands.

Kihiu Mwiri sought orders to have Breeze vacate the contested property. At the same time, it asked the court to force Breeze to remove an electric fence erected on the land.

Kihiu Mwiri also asked the court to declare that Breeze’s title was obtained illegally. The company which was said to have 3,507 members, claimed it did not receive money from Breeze. It argued that before May 2010, it owned the property but the same was transferred to Breeze while there was a caveat.

In its counterclaim, Breeze stated that it inked a deal with Kihiu Mwiri to purchase 134 acres at Sh37.5 million to stop an auction.

Breeze said it cleared the amount agreed and Kihiu Mwiri transferred the land, after which a title was issued. Kihiu Mwiri filed another case in 2011 but later withdrew it.