A British couple can now breathe a sigh of relief after Mombasa court ordered a tour operator, whom they had entrusted with their funds to construct a retirement home for them, to surrender titles to three parcels of land, which are in his name.
Justice Charles Yano also ordered that failure by Mr Benedict Ndigirigi Gichuhi, the tour operator, to surrender the certificate of titles, the registrar of titles in Mombasa should cancel or nullify them.
Mr Phillip Grimmett and his wife Sandra sued Mr Gichuhi seeking to have him compelled to surrender the titles for the parcels of land,, upon which their retirement home located in Mtwapa is built.
Justice Yano said he was persuaded that the couple gave money to Mr Gichuhi, which he used to purchase the parcels of land and finance the construction.
"The applicants (couple) have demonstrated that the respondent (Mr Gichuhi) convinced them to use his name to acquire the property because they could not as foreigners own property on their own," said Justice Yano.
He added that Mr Gichuhi's insistence that he was the absolute registered owner of the parcels of land was not backed by any evidence of his source of funds to buy them, unlike the couple which presented accounts from where money was drawn, including that which was sent to him.
"The respondent even conceded that the applicants constructed a house on the parcels of land. It is my finding that the applicants could not go to the extent of developing a property which did not belong to them and it is also doubtful whether the respondent could have allowed them," said Justice Yano.
The court noted that the couple produced evidence to show that they sent money from England to Mr Gichuhi and it was their case that it (money) was for purchasing land and building a house.
It further noted that although Mr Gichuhi testified that he was kicked out of the property, he had not made any claim- by way of counter claim-to regain its possession and occupation.
"I doubt that a true owner of property would move out without taking any legal steps to regain the same including filing a counter-claim in this suit," said Justice Yano.
The Judge also ordered the registrar of titles to register the transfer of the titles in the three parcels of land, signed by Mr Gichuhi to the couple.
The judge also directed the Registrar of Titles to issue a provisional certificate of title in both names of the couple as in the transfer.
The couple told the court that sometimes in 1989 they met Mr Gichuhi, became friends, and even supported him and his son financially.
Mr Grimmett said they met Mr Gichohi at Bamburi Beach and once they went back to England they communicated with him through letters, became very good friends, treated him like a son, took him out, gave him money, and even paid for his house rent.
The couple said that Mr Gichuhi assisted them to acquire property in the country in order to put up a retirement home.
According to the couple, in 2005 they orally agreed with Mr Gichuhi that he would assist them to purchase the three plots to build the home.
The court was told that Mr Gichuhi introduced the couple to Lowsea Investments Limited, the agent for Agricultural Handling Services Ltd, the then registered owner of the land.
The couple told the court that they were advised by Mr Gichuhi that the land falling within an agricultural zone and being subject to the provisions of the Land Control Act, it could not be registered in their names as they were foreigners pending their incorporation of a holding company or appointment of a nominee to whom it would eventually be transferred.
Therefore, the court heard that Mr and Mrs Grimmett agreed with Mr Gichuhi that the three plots be registered in his name.
The couples said that pursuant to the agreement, they purchased the parcels of land at Sh450,000 each and paid the entire price before the land was registered in the name of Mr Gichuhi who at all-time knew was merely for the sake of convenience and appearance.
The court heard that the applicants pooled their savings and built a bungalow constituting of two units, paid for the cost of construction including fees for building plans and installing utilities.
The couple said they were depositing money into their savings account which Mr Gichuhi was authorized to operate in order to withdraw money to pay contractors and bills while they were away in Europe.
They told the court that on or about May 28, 2009, Mr Gichuhi who had been taking care of the premises moved out after the applicants came back from Europe.
The couple said due to his threats to grab their property, they moved to court and were issued with an interim order to stop him from selling it.
According to the couple, since they had lived together (with Mr Gichuhi) and understood each other, they were advised by their lawyer that the case could be settled out of court.
They said that Mr Gichohi agreed to surrender the title and be given Sh70,000 upon signing of a transfer (agreement) to transfer parcels of land in their names.
The applicants told the court that their lawyer told them that Mr Gichuhi signed the transfer and was to surrender the title for registration in their names.
According to the couple, they agreed to sign a consent to withdraw the case from the court as Mr Gichuhi was to deliver the title to their advocates.
The couple told the court that three months after the case was withdrawn, Mr Gichuhi had not released the title deeds to them or their advocate but instead threatened to sell the properties despite having signed the transfer in their favour.
On his part, Mr Gichuhi denied the claims by the couple but admitted meeting them in September 1989 and booking them a tour to Tsavo East and West and Amboseli National parks where he also accompanied them as a tour guide.
He also denied agreeing to assist the couple in acquiring property in the country including the land and also receiving any form of assistance from them.
It was Mr Gichuhi's contention that he purchased the parcels of land using his own resources with some little assistance from his relatives and paid Lowsea Investments Limited for the parcels of land.
According to Mr Gichuhi, there was no agreement between him and the couple that the three plots be registered in his name.
He admitted receiving money from the applicants but argued that it was for the construction of the bungalow but not for the purchase of the plots.
Mr Gichuhi who denied intentions to sell the properties claimed it was Mrs Grimmett who brought prospective purchasers to view the property.