When Mama Ngina, Kenya’s premier First Lady, decided to sell a good chunk of her land in Ruiru in 1986, little did she know that she would end up in court fighting for 27 years to regain the family heritage.
Mama Ngina argued that she was only paid the deposit of Sh500,000 — and that she never got the balance – while the buyers insisted that they had paid the deposit plus the Sh4.5 million balance.
The truth was in between there.
In a case that intrigued the judges, it was finally decided that Mama Ngina had to give up the fight to recover the land, tens of acres located along the eastern bypass and adjacent to the family’s Gicheha Farm and Brookside Dairies.
For years, Mama Ngina had been selling land in this area with little trouble. She had previously sold part of her Waunyomu Ngeke Ranch to the current Kahawa Sukari and wanted to sell another chunk to Mahira Housing Company of Ruiru.
To deviate a little, Waunyomu Ngeke was an acronym. It stood for members of the first family: Wambui, Uhuru, Nyokabi, Muhoho, Ngena (sic) and Kenyatta and had Ngina and Kristina Wambui registered as trustees.
In land records Waunyomu Ngeke Ranch was identified as L.R No. 10901/7/R but had later on been subdivided into two parcels, L.R. Nos. 10901/36 and 10901/37 South of Ruiru to facilitate the sale.
For years, the Kenyatta family had acquired some prime land in the Ruiru area through direct purchase or as “allocation” from the government.
There was controversy in 1970s about part of the land known as Sukari Limited (once owned by Socfinaf) and which later became the Sukari Ranch. This used to be a sugarcane plantation with a tiny sugar mill supplying its products to Nairobi and its environs.
When the government decided to purchase the land to settle some landless people from Gatundu in 1975, the minister for Lands and Settlement, Jackson Harvester Angaine, wrote a letter, now in the National Archives, instructing the Commissioner of Lands to set aside some 6,000 acres for Jomo Kenyatta. The letter is dated January 7, 1975 and that is how the family got part of the Ruiru land.
It is not clear if Waunyomu Ngeke was part of this. Back to the sale of Waunyomu Ngeke Ranch, which is west of Sukari Ranch, Mama Ngina had approached her lawyers, Shapley Barret & Co Advocates, to finalise the deal and that is when things went wrong.
A sale agreement was entered on May 14, 1986 in which Nairobi lawyer Da Gama Rose, a senior partner in Shapley Barret & Co, was involved in the transaction – after all the Kenyatta family were his top clients.
The Da Gama Rose family was recently in the news over the controversial Karen land, and one of their members Mirabeau Humberto was for many years the chairman of Commercial Bank of Africa owned by the Kenyatta family and was one-time chairman of Nairobi Stocks Exchange, now Nairobi Securities. His father, Francis was also a Jomo Kenyatta lawyer.
That is why Mama Ngina had lots of confidence that Da Gama Rose would do the legwork. The buyers had reached to Githuka & Mbugua Advocates to help them clinch the deal.
The buyers led by a man named Kariuki Muiruri (not related to former Gatundu North MP) and his treasurer Peter Githuka would later tell the court that during the transaction over the land, they realised that Da Gama wanted to cheat them over the identified two pieces of land. They also got to know that he wanted to sell the same piece of land to Family Finance Limited.
GATHECHA TO INTERVENE
They believed that Da Gama was not forthright in the transaction and they decided to use their networks and reach Mama Ngina’s brother Paul Gathecha, to intervene on their behalf.
When both Muiruri and Githuka met Gathecha, he took them to see Mama Ngina at the Shapley Barret offices in Nairobi’s Wabera Street.
During the meeting, Mama Ngina asked Da Gama why he was cheating the housing company by refusing to give them the agreed land and why he wanted to sell it to Family Finance Limited. Da Gama told Mama Ngina that Muiruri and Githuka should get the land as agreed and they all entered a new agreement that was dated May 14, 1986 for L.R. Numbers 10901/36 and 10901/37.
By this time some shareholders of Mahira Housing had started to settle on the land. Ngina had not protested and this would later haunt her. While Mahira Housing led by Muiruri and Githuka deposited the initial Sh500,000, and was issued with a receipt, what happened later on became a contested issue.
Mama Ngina’s lawyer insisted that the housing company did not pay the balance and that is why she rescinded the agreement in May, 1987. She wanted the housing company evicted from the land, which they had “forcefully and unlawfully taken possession of”.
Da Gama Rose acknowledged that he had received the 10 per cent deposit but then two receipts produced in court issued from the office of Mama Ngina’s advocates became the bone of contention. Could somebody from the law firm have received money from Mahira Housing and issued a fake receipt bearing the company’s name?
The two receipts, which were produced in court and dated March 30, 1987, indicated payment of Sh3.1 million and another dated November 24, 1988 for Sh1.4 million. The two directors of the company said this amount was paid in cash but it appears that this payment never reached Mama Ngina, if indeed it was paid.
Da Gama Rose was emphatic that he never received this balance, dismissing the two receipts as forgeries “since they all refer to deposit and yet deposit had already been paid”.
But Githuka, the housing company chairman, said that they paid the full amount, and subdivided the land into plots with title deeds. His question then was: How were the titles issued without Mama Ngina’s consent and surrender of original title?
Githuka asked the court to summon Mama Ngina to testify but her lawyers protested and shielded her from appearing. If she had, it would have been her first time to stand in a court of law as a witness.
AGREEMENT WAS SIGNED
Githuka also wanted Mama Ngina to tell the court how members of Mahira Housing occupied the land before the agreement was signed.
While the High Court had at first ruled that the receipts for Sh4.5 million were fake and ordered the Mahira Housing members out of Waunyomu Ngeke Ranch, they went to the Court of Appeal.
But there were also some serious issues that emerged at the High Court and which have not been answered to date.
If indeed these two had paid, as they told the court, why had they gone to Kenya Finance Limited seeking a loan to purchase the same land, long after Mama Ngina had cancelled the deal?
That was the question High Court Judge Emmanuel O’kubasu was asking himself: “If full purchase price was paid by November 24, 1988, why were the advocates for the defendant talking of a loan to purchase the same land in February 1989?”
If that was the case, then was Mama Ngina being conned of her land?
The next was a letter dated September 21, 1989 from Wambugu & Co Advocates acting for Mahira Housing company and sent to Mama Ngina’s lawyers forwarding a cheque of Sh1 million and giving an undertaking to pay Sh3 million within 7 days from date of registration of transfer of the land to Mahira Housing.
By this time, Mama Ngina had cancelled the deal. So, had the housing company forgot that they had paid already? The next question was how was the head title released and new titles issued?
High Court found that the letters purporting to have come from the Lands office in Nairobi were forgeries. The unfortunate thing was that the chairman of the housing company who is said to have been receiving money and paying for the land had died.
Thus, the members were left to fight for a land which they had already paid for or were told they paid. “We have a situation in which the head title and the original deed plan are safely kept by Mama Ngina’s advocates in their offices in Nairobi but the land in question is being surveyed, subdivided and new titles being issued under a different Act of Parliament,” Justice O’Kubasu observed.
SURRENDERED TO GOVERNMENT
According to correspondence produced as evidence, the head title was surrendered to the government in 1996 but Da Gama also produced the “original” head title and deed plans and told the court: “These documents have never been surrendered to the government.”
With that, Justice O’Kubasu ordered Mahira to vacate the land.
It was at the Court of Appeal that tables were turned on Mama Ngina. The court ruled that it was important for one of the principals, Mama Ngina, to testify in order to shed light on whether or not the suit land was sold to Mahira Housing.
Another problem was failure by Mama Ngina’s lawyers to enjoin the 1,600 members into her suit. Since they were not parties to the case, it was hard for them to be evicted since they had title deeds to their plots.
What that meant was that Mama Ngina was holding a title of a non-existent land. Also, they did not summon the Commissioner of Lands to tell the court how the titles were issued.
While giving Mahira Housing the land, the court took issue with Da Gama Rose for refusing to have Mama Ngina summoned to give her side of the story: “What was (Da Gama) trying to conceal?” the court asked.
That question has never been answered and that is how the words of William Shakespeare still echo: Let every eye negotiate for itself and trust no agent.
Mr Kamau is a Senior Writer with NMG. Email: [email protected] Twitter: @johnkamau1