Retired President Mwai Kibaki and other directors of a company owning a multimillion-shilling property in Nyeri County will have to wait longer before receiving rent amounting to more than Sh16 million.
This is after Environment and Lands Court judge Mary Oundo rejected an application to order the release of the money to City-based firm Kamau Kuria and Company Advocates.
The law firm represented the Kibaki-led group in a 10-year-old dispute (2008-2018) on ownership and control of the property whose estimated monthly income is Sh200,000 and a company called Mathingira Wholesalers Ltd.
JOINT ACCOUNT
The rent goes to a joint account at KCB Bank Nyeri branch in the name of Kamau Kuria and Company Advocates and Lucy Mwai Company.
Apart from getting the money, Mr Kibaki and the other directors wanted the court to order the substitution of two of the deceased founders – Gadson Gitonga and Kibera Gatu.
In an September 23, 2019 application, they wanted Mr Daniel Githinji to take position of Mr Gitonga while Mr Egedios Mwangi Kibera and John Mwangi Kibera was to take the position of Mr Gatu.
The application also sought to have the suit revived in favour of Mr Gitonga and Mr Gatu.
The application also sought to have the suit revived in favour of Mr Gitonga and Mr Gatu.
It was supported by affidavits sworn by Mr Kibaki on September 23 and Mr Kuria on an undisclosed date.
Justice Oundo said there is a dispute between the lawyers involved in the case about the decree extracted from the Court of Appeal ruling that reinstated the control of the property to the Kibaki team.
The court said it is clear the order is not in tandem with the terms of its judgement and is awaiting rectification of an error.
The court said it is clear the order is not in tandem with the terms of its judgement and is awaiting rectification of an error.
She ruled that it would be prejudicial to allow the application filed by Mr Kibaki and his team while the Appellate Court has not determined the application filed on the rectification of the order.
GREAT VARIANCE
“I have no hesitation to find that the purported decree is at great variance with the judgment entered by the Court of Appeal on March 21, 2018,” she said.
“The steps taken by the applicants in the present application are greatly prejudicial to the respondent and cannot be allowed to maintain.”
She struck out the application after finding it was premature.
According to Justice Oundo, the judicial discretion is such that no one is better placed to interpret the meaning and purport of a judgment or order other than the judge who recorded it.
But she added that the Court of Appeal rules provide for correction of errors on orders and judgements.
With with his elder brother Samuel Githinji and friends Kimwatu Kanyungu, Kiiru Gachuiga, Gadson Gitonga and Kibera Gatu, Mr Kibaki acquired the land and started the company in 1970s.
The firm served as as agent of the shareholders in collecting rent at the property.
The firm served as as agent of the shareholders in collecting rent at the property.
Trouble started following a disagreement on management of the company when a new chairman – Francis Gathungwa – was elected into in October 2007 replacing Kanyungu.
The dispute saw Mr Kibaki take the witness stand at the Lands Court in Nyeri in 2013 soon after retiring from the presidency.