Sam Kiplagat
6 November 2009
Nairobi — A businessman dug out a case that was first filed in court by his father about four decades ago, and succeeded where the old man, now dead, failed. And as, from his determination, Mr Raphael Murigi may be celebrating his success, four other families are crying foul and do not know whom to turn to for help.
Mr J. Simon Kariuki, Murigi's father, first moved to court on March 20, 1972, seeking the transfer of the land to him. The land, at the Gacharage area of Kigumo, Murang'a, then belonged to Mr Joseph Ndirangu Mwangi. From records filed in court, Mr Kariuki sought to buy the land from Mr Mwangi on September 15, 1968.
Land transfer
The deal never materialised, forcing Mr Kariuki to move to court. In doing so, he sought the transfer to himself and a refund of Sh3,940 he claimed to have paid towards its purchase. Mr Kariuki further sought from the court an order barring Mr Mwangi from interfering with the land.
But Justice L.G.E. Harris dismissed the case in November 1979, having agreed with Mr Mwangi that the land was an agricultural piece, and that without consent from the land board, the sale had become void after three months. Unsatisfied, Mr Kariuki moved to the Kigumo lands dispute tribunal, but the case was again dismissed when it was declared res judicata, or a matter that had earlier been decided.
Evidence on record shows that Mr Mwangi did not, however, throw out his accuser from the land. Instead, he divided it into four portions. He did the subdivision in 1981 and transferred the possession to Mr Mwangi Kariebu, Ms Elisipha Wangari and Mr Evanson Waweru Gichoya. He retained the fourth portion.
After the case was dismissed by Justice Harris, Mr Mwangi obtained an eviction order for Mr Kariuki, but police did not act on it. Incidentally, Mr Kariuki died in 2001 after suffering a stroke. He had stayed on the land over the years. And after his death, his son recently moved to court and revived the case, suing Mr Mwangi.
Mr Murigi also sued the three occupants. He filed the case before the High Court in Nyeri, seeking, among other orders, that the whole land be transferred to him. He succeeded. According to him, he has stayed in the land uninterrupted since 1968. He successfully argued that he was suing Mr Mwangi in his own capacity and not on behalf of his father.
He added that he moved into the land with the defendants' knowledge, but without their consent. The land was subdivided in 1981 when the case was pending in court, he argued. The four defendants filed their defence through the firm of Wagiita Mwangi & Co Advocates.
In his defence, Mr Mwangi said he was the owner of the land, and that he had subdivided and transferred the pieces to his co-accused. He asked the court to dismiss the case, arguing that it was vexatious as he was battling over land with a peson he had no relationship with.
Justice Milton Makhandia, upon hearing the case, asked all the parties to file written submissions and exchange them among the parties ahead of the hearing. Mr Murigi, through his lawyers, prepared himself for the case. The respondents, according to Mr Mwangi, failed to defend the case after being let down by their lawyer.
Chance to respond
The judge noted that he twice gave them the chance to respond, but failed. "In the end, I was compelled to set the judgment date without the benefit of having the respondents' written submissions on record," he said. Mr Murigi said he has enjoyed uninterrupted possession of the land for over 33 years.
Justice Makhandia said in his judgment that issues raised by Mr Mwangi that he had earlier been sued by Mr Murigi's father were irrelevant, arguing that the son brought the case in his own right, and not on behalf of his father. The judge noted that Mr Mwangi subdivided the land well aware that Mr Murigi owned it.
In his ruling, he said that, in the absence on any evidence contrary to what was said by Mr Murigi, he had no option but to "assume they had not taken physical possession of the whole suit premises, the subdivision notwithstanding." Mr Murigi had shown before him that he had been in "continuous, uninterrupted and exclusive" possession of the land since 1981, he added.
He pointed out that Mr Murigi had proved his claim of adverse possession. "The occupation has been adverse to the respondents, though," the judge noted. Left with no option, Mr Mwangi recently wrote to Chief Justice Evan Gicheru, asking for intervention.
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