A 42-year-old legal tussle over the ownership of a Sh2.4 billion parcel of land measuring 127 acres at the heart of Kiambu County, pitting two brothers and their sister, has been resolved by the Court of Appeal sitting in Nairobi.
The appellate court, comprising its president Mr Justice William Ouko, Lady Justice Hannah Okwengu and Mr Justice Asike Makhandia, on Friday overturned a decision of Lady Justice Mary Gatumbi delivered on July 31, 2015 on the sub-division of the land in Tigoni, Kiambu County.
The three-judge bench ordered the land to be divided into two equal portions of 63.5 acres amongst two bothers, James Nyoro Kibutiri and Eliud Njau Kibutiri, as prayed by lawyer Titus Koceyo.
Their sister Loise Wanja Kibutiri, who had contributed towards its purchase, sought to be allocated over 40 acres as urged by veteran lawyer Dr Gibson Kamau Kuria.
However, the judges noted that she had not been part of a partnership that was registered by James and Eliud.
Loise contributed through James Sh12,000 towards the purchase of the 127 acres from the original owners, a British settler, Thelma Kathleen Gladys Baxendell, in 1964.
From the appellate court's decision, she will only get 6.35 acres from the portion allocated to James Nyoro Kibutiri.
From James' share of 63.5 acres, Loise will be allocated 6.35 acres, leaving 57.15 for James who, the judges said, "excluded Eliud from the property since 1967."
"We think James has been extremely unfair to his brother Eliud," Judges Ouko, Okwengu and Makhandia ruled.
In the sub-division that was overturned by the three-judge bench, James had been allocated 108 acres of the 127 acres bought by the three.
Said they: "James has lived on the farm with his family since 1967 where he built a house at an estimated cost of Sh0.8m and has never paid rent to the partnership he registered with his brother vide an indenture."
The judge further stated that James single-handedly runs the farm assisted by his wife and sons.
He leased out 35 acres of the farm for coffee and 12 acres for tea and the produce sold to the defunct Kenya Planters Co-operative Union (KPCU), Kenya Cooperative Creameries and Brooke Bond.
Oldest land disputes
"From the evidence in 1964, the farm was fully developed with 30-35 acres under coffee, 10 acres of black wattle, 87 acres grazing land, a coffee mill, big fully furnished farm house, farm machinery, motor vehicles, tractors, livestock and 12 acres of local produce, vegetables, maize and beans," the judges noted.
The judges who resolved the case, which is one of the oldest land disputes litigated in the judiciary history, said it was "protracted, ferocious and transcends family bloodlines."
The case commenced in 1978 and has been handled by former celebrated judges of the Judiciary among them former Chief Justice Allan Hancox, Justice James Porter, the late Appeal Judge Justice James Nyarangi, and Justice Effie Owuor (rtd).
In their judgment, the judges settled the issue of determination as urged by veteran lawyers Kamau Kuria and Titus Koceyo as to whether Loise was entitled to an equal share of the land since she contributed towards its purchase.
All the three -- James, Eliud and Loise -- are deceased and their children inherited the case.
Thomas Kibutiri Njoro, George Kamau Kibutiri and Robert Ndung'u Kibutiri represented their late father James while David Muthee Kibutiri represented Loise and David Kibutiri Njau represented Eliud in the litigation.
The three-judge bench ruled that when the land was purchased from the British settler at Sh140,000, James had contributed Sh118,900, Loise Sh12,000 and Eliud Sh9,000.
Others who participated in its purchase were Peter Njoroge Kinuthia and Kamau Kinuthia.
Thereafter James, Eliud, Peter and Kamau registered a Deed partnership known Kiambaa Young Farmers on September 10, 1964.
Later, Peter and Kamau relinquished their interests and conveyed their shares to James and Eliud as tenants in the land in equal shares.
Repayment of loan
The appeal judges said Loise never featured in the new arrangements although James had in 1964 and 1967 received Sh12,000 from her, telling her that she will be a shareholder in the land in dispute.
The court observed that James had told Loise that the money was going towards the repayment of a loan advanced by the Agricultural Finance Corporation (AFC) which stood at Sh72,262.62 and a debt of Sh41,245.30.
After analysing all the evidence, Justices Ouko, Okwengu and Makhandia said Loise's interest in the land will be borne by James since it's him who had promised her the parcel of land.
"On December 22, 1978, Justice Nyarangi ruled that the land was held in partnership amongst the three (James, Loise and Eliud," the court observed.
But they added: "Eliud appealed against that decision and then appeal judges Law, Porter JJA and Hancox, Ag JA said there seemed to have been a de facto partnership between the three parties."
Judges Ouko, Okwengu and Makhandia, who waded further into the matter, said the land never became the property of partnership but all through was owned by James and Eliud in equal shares of 50 percent each.
"Eliud was never party to any understanding between James and Loise and that his 50 percent share was never affected," the judges ruled.
The judges rested the litigation by awarding Eliud 63.5 acres valued at over Sh1.2bn. Loise will be allocated 6.35 acres, leaving 57.15 acres for James.