Top court deals blow to Kiambu tycoon in Sh3b property dispute

For years, Kiambu Mall owner Peter Burugu clung to a title claiming he owned a Sh3 billion prime property in the upmarket Runda, Nairobi.

However, forensic investigations conducted by the Director of Criminal Investigations (DCI), the evidence on how a ‘dead’ company was used to generate a parallel title for the property and self-destructive testimonies by key witnesses led to his double loss, both at the Court of Appeal and the Nairobi Environment and Land Court (ELC).

The case has been in the corridors of justice for six years. A revelation before the ELC Judge and subsequently the Court of Appeal that the title held by Burugu’s company Jumchem Healthcare Ltd, which was also known as Runda Palms and Williams & Kennedy Ltd (WKL) were registered on a weekend, on May 17, 1955, cast doubts on the authenticity of his title.

Further, the lack of evidence on how WKL obtained the registration of the title on October 19 1983, dealt a blow to the Bia Tosha Ltd tycoon’s claim over the land and contributed to the collapse of his narrative before the two courts. 

Due diligence

In a 135-page landmark judgment on title ownership, Court of Appeal Judges Patrick Kiage, Weldon Korir and George Odunga ruled that Nairobi businessman David Kimani had proved that he purchased the property from Zena Grace Linsle and paid the agreed Sh20 million.

They also found that he executed the transfer on September 5, 2000 and paid the Sh400,000 stamp duty to the government. 

The trio unanimously agreed with ELC Judge Edward Wabwoto that Kimani had proved that he conducted due diligence to show that Linsley was the owner of the contested land.

“We have said enough to show that we have not been persuaded to form a sound basis upon which we can interfere with the judgment of the learned Judge or reverse his findings. The upshot is that we find no merit in these consolidated appeals and they are each dismissed with costs,” the bench headed by Justice Kiage ruled.

It emerged that Linsley bought the same from Basil George Mitton, who had himself acquired it from Saint Benoist Plantation Ltd on July 25, 1950. They also dismissed Burugu’s claim that Kimani had no written agreement with Linsley, saying the absence of a written agreement for sale did not soil the sale.

According to the judges, the mandatory requirement for a contract for the sale of land be in writing took effect from the year 2003, while the sale in dispute happened in 2000. 

The Judges found that Burugu and Jumchem had not controverted the evidence produced by Chief Inspector Patrick Malona and Assistant Superintendent of Police Alex Mwongela on the forged signature of former Commissioner of Lands James Raymond Njenga and senior lawyer Fred Ngatia.

The Court of Appeal observed that WKL’s Managing Director Francis Ng’ang’as testimony had destroyed Burugu’s claim.

Ng’ang’a claimed that he acquired the land in 1983 through the purchase of shares in WKL. However, the three Judges observed that he also claimed that his company, also a  Williams & Kennedy Ltd was incorporated on March 18, 1955.

At the same time, they found that documents produced by the 70-year-old indicated that the share happened on January 24, 1904, before the firm was incorporated. 

In the case, Burugu and his firm argued that the latter’s ownership of the disputed parcel between 1955 and 2007, when Post Bank Credit Ltd (in liquidation) transferred title to Jumchem Healthcare Ltd, is buttressed by Gazette Notices published on November 12, 1970, indicating an intention to compulsorily acquire the land WKL. He also claimed that the gazette notices constituted evidence of ownership of the property by WKL and not Milton.

However, the three judges reasoned that testimonies from witnesses from the Department of Government Valuation and Kenya Urban Roads Authority indicated the contrary, adding that no compulsory acquisition took place.

WKL now ends up in the long list of infamous intricate webs of land sagas, neatly planned and executed by a ghost. 

Justices Kiage, Korir, and Odunga handed a blow to  Burugu and his company after finding that the document he held was just a paper with no value, as its root was questionable and tainted with illegalities.

They unanimously agreed with Justice Wabotwo that Burugu, Jumchem Health Care and Mary Wanjiku Juma had nothing to claim owing to glaring illegalities and demonstrated fraud on WKL’s title.

WKL’s lawyer Martha Karua argued that the firm was in the property for 17 years before Kimani bought it. She also said there was no evidence to show if liquidators took over the firm, adding that its filed returns in 2020 showed its existence. WKL has since filed its intention to move to the Supreme Court.

Ng’ang’a’s narrative and claim over the property further crumbled, piece by piece, after the Court of Appeal observed that the 70-year-old had little information on how WKL allegedly acquired the land.

He expressed surprise when he was informed that the registration happened on September 17, 1955, a weekend, and admitted he did not first obtain the CR 12 nor was he shown any title by the directors of WKL, from whom he claimed to have acquired the land.

 In addition, it emerged that the letter of offer for the shares contained contradictory purchase prices. Further, it emerged that although they had appointed Emu Registrars Ltd as company secretaries for WKL on August 13, 1987, this firm and its proprietor were registered in 1991 and 1990.

Burugu told the court that he is the director of Jumchem Healthcare Ltd (alias Runda Palms Ltd), alleging that he bought the land from the Deposit Protection Fund Board through Jumchem for Sh18 million and took possession.

However, the court observed that he did not produce evidence of any sale agreement nor proof of payment of the purchase price. At the same time, Burugu also admitted that the acreage on his deed plan was 9.999 hectares, which was different from 6.5796 hectares, which he claimed to have purchased.

The Chief Land Registrar David Nyandoro told the court that he could not establish how WKL acquired the land, as it was registered way before 1983. He added that there were no original documents for Williams & Kennedy Ltd’s subdivision and could not tell how it got the title.

For years, there were two titles over the disputed parcel. On one hand, Kimani, told the court through former Attorney General Prof. Githu Muigai that all was well and calm until November 2, 2019, when Burugu, Runda Palms, invaded it.

The senior lawyer argued that it was impossible for WKL to get a new title as the land was neither re-surveyed nor was the parent title and deed plan surrendered for a new deed plan. In the meantime, he questioned the move to use the property as collateral to Post Bank, while knowing that they did not lawfully own it.

He also argued that Burugu could not have bought the land genuinely, as there was a caveat in place. He noted that the businessman got registration on May 23, 2007 and unsuccessfully tried to transfer it to Runda Gardens Development Ltd on the same date.

At the same time, he said the businessman swore documents on behalf of Jumchem while knowing it ceased to exist in 2009 and further attempted to reconstruct the land register in 2020 while knowing that the ELC was seized of the ownership dispute and its title was non-existent. 

It also emerged in the proceedings that although Burugu had bought the land from WKL, the two of them presented titles with conflicting entries when the same were supposed to be uniform.

Kimani’s lawyer observed that while the value of the charge and further charge in the title held by  Burugu had indicated Sh7 million and Sh 2 million, the corresponding entries in the title held by WKL did not indicate the value of the charge and further charge.

 The former  Attorney General argued that while the title held by Burugu’s company indicated the value of the transfer leading to its acquisition of the parcel after Post Bank sold it off for Sh 18 million, the corresponding entry in the title held by WKL did not indicate the value of the transfer.

Bururugu’s lawyer Ochieng Oduol argued that the lower court overlooked some information and claimed that Kimani’s case was time-barred as he sued 19 years after purchase.

According to Oduol, Kimani would have been aware of two other cases between Burugu, WKL and Runda Palms had he done due diligence. He said the judge erred by finding that Kimani had proved the existence of a valid root title.

The lawyer also said Kimani had not occupied the land.