More than 70 homeowners now face eviction from an 85-acre parcel of land in Thika after the Court of Appeal dismissed their case saying the issues they intended to appeal against had been decided before.
A bench of three judges of the appellate court dismissed the application by Joseph Githu Ibau and 73 others, seeking to block their eviction and demolition of their homes from the contested land in Thika municipality.
Justices Asike-Makhandia, Mumbi Ngugi and Mwaniki Gachoka said the land belonged to the estate of Mary Wairimu Dames and, therefore, Langata Development Company Limited, a land-buying firm, had no basis for getting third parties onto it.
“To grant such an order in the circumstances will be tantamount to giving a seal of approval of their mischief. On the whole, therefore, the application fails and is dismissed with costs to the 2nd respondents,” the judges said.
The home owners said they had filed a petition before the Environment and Land Court, seeking orders to block Ms Margaret Esther Dames and John Andrew Dames, who are the administrators of the estate of Mary Wairimu Dames, from demolishing their homes, pending the determination of their case.
They argued that they faced imminent eviction yet the main legal issue, on the disputed ownership of the land, has not been addressed.
The administrators opposed the case saying the intended appeal was just choreographed to appear as if it raised fresh issues, yet the issues had already been determined by the Court of Appeal.
The land-buying company lost a similar application about four years ago when a different bench found that Dames, then aged over 80 years, had been defrauded of the land.
Evidence presented in court showed that Ms Dames decided to sell part of her farm known as Mary Dale farm in Thika, measuring about 1,062 acres in 1989. But during the transfer, she lost some 85.3 acres.
The directors of Langata Development identified the land and visited her house where it was agreed that the company would buy the 672 acres for Sh23,500 per acre. They paid Sh15.8 million and the terms were captured in an agreement dated February 6, 1989.
But during the transfer, the measurements were drafted in hectares, which saw Ms Dames losing some 85.3 acres.
The Court of Appeal noted that the transfer was strange because the advocates and the surveyor managed to transfer an extra 85.3 acres without paying a cent for it. A title issued to the company on August 25, 1992, said the land measured about 306.5 hectares.
It took her some 14 years to recover the land, after discovering the anomaly in 2004 when she received a rates demand from the defunct Municipal Council of Thika, which showed the acreage of her remaining land, which was still unoccupied, to be different from what it ought to have been.
In the latest case, the administrators argued that the applicants were trying to re-litigate a matter that had been determined with finality.
They also said the original title LR No. 7240/23 was cancelled and two new title deeds were issued by the Senior Land Registrar as directed by the court.
By SAM KIPLAGAT