An appellate judge has allowed Nairobi tycoon Mike Maina Kamau to file an appeal out of time in a case which he is fighting with the Kenya Prisons department over ownership of a 'public' land parcel in Murang'a town.
Justice Wanjiru Karanja allowed Mr Kamau's company, Muthithi Investments Company Limited, to file the appeal although he had delayed for five months.
He was supposed to have lodged the appeal within 60 days after filing the notice of appeal against a High Court decision dated January 27, 2020 that annulled his title deed for the property measuring 1.045 hectares.
Following the prolonged delay, in July last year Mr Kamau filed an application seeking the appellate court's authority to lodge the appeal outside the required timelines.
The Commissioner of Prisons and the Attorney General had opposed Mr Kamau's request saying that the delay had not been explained.
Mr Motari Matunda, Principal State Counsel from the Attorney General's office, said the businessman's case does not disclose any likelihood of success.
But Justice Karanja said the businessman, who is the owner of Marble Arch Hotel in Nairobi, had already started the process of appealing against the High Court judgment but filing of the main documents was disrupted by Covid-19.
"Whereas the delay of five months would raise concern under normal circumstances, each case must be considered within its own peculiar circumstances. In this case, the Covid 19 phenomenon was unexpected and for some time there was confusion as to how the courts and the registries were to operate. With those circumstances in mind, I am persuaded that the delay has been sufficiently explained," said the judge.
She added that the Commissioner of Prisons and Attorney General will not suffer prejudice by allowing the late filing of documents to pave way for the intended appeal to be heard and determined on merit.
The judge added that Mr Kamau's company had filed the notice of appeal and served on time. "The confusion appears to have set in following the onset of the Covid 19 phenomenon which threw everyone into a spin. In an unprecedented action, operations at the court registries were scaled down and some court registries were actually closed," said the judge.
She noted that most of the court staff started working from home and there was confusion as to how the registries could be accessed.
In the appeal, the businessman is challenging the decision of the Environment and Lands Court in Murang'a to declare his title for the land null and void. The trial court also placed a permanent injunction on Mr Kamau's company not to trespass into the land.
He says the trial judge erred in failing to hold that he was a bona fide purchaser for value without notice.
He argues that he purchased the land legally in 1997 from one Stanley Maina Njuguna trading as Joheda Developers for a sum of Sh1 million and thereafter acquired a title deed from the Lands Registry. The property is registered as Murang'a Municipality Block 2/525.
Mr Kamau said the said Mr Njuguna produced the allocation documents which showed he had been allocated the suit land by the Commissioner of Lands.
The businessman had been in exclusive possession of the suit property for over 16 years, until 2013 when the Kenya Prisons laid a claim on the land despite him being in continued payment of all the requisite dues to the county government.
He moved to court in 2013 after the prisons department announced plans to build a correctional facility for juveniles on the piece of land.
But Justice Grace Kemei ruled that the land parcel had been alienated in 1963 and allocated for use by the Fort Hall Juvenile Remand Home.
"Any alienation of land reserved for public purpose and issuance of a title for the same, whether under the Registration of Titles Act, cap 281 or the Registered Land Act, cap 300 is null and void ab initio (from the beginning). Such a title does not exist in the first place because the land belonged to the public and was not available for alienation," ruled the judge.
The trial court stated that the said Stanley Njuguna Maina had nothing to transfer to Mr Kamau and the title that was conveyed to Mr Kamau by the said seller was in the circumstances invalid, null and void.
In November last year, the appellate court suspended execution of the trial court's judgment pending the hearing and determination of the businessman's appeal.
While granting Mr Kamau the temporary relief, the Appeals court found that if the judgement is implemented, Mr Kamau's company risks losing the property to the Murang'a Juvenile Remand Home.