- Appeal judge Fatuma Sichale dismissed plea for extension of time to lodge an appea
- He ought to have filed the application before the Supreme Cour.
A son of former senior chief Waruhiu has lost a legal battle over land inheritance.
The land was given to George Waruhiu’s siblings by the Court of Appeal, which declared them rightful owners. The ruling overturned a decision allowing George to hold it in trust.
Appeal C0urt judge Fatuma Sichale dismissed a plea by George for extension of time to lodge an appeal, saying she did not have jurisdiction to grant what he is seeking.. He ought to have filed the application before the Supreme Court. she said.
“It is evident from the provisions quoted above that this court lacks the authority to grant the order of extension of time as sought in the instant motion and it is my considered view that the applicant has erroneously canvassed his application in the wrong forum,” Sichale ruled.
The judge added, “The upshot of the above is that the motion of November 5, 2019, is improperly before me. It is hereby dismissed with costs to the respondents.”
The application stems from an estate dispute between the children of senior chief Waruhiu.
He had five wives and when he died intestate, his 55-acre farm was subdivided into five parcels and each registered in the name of the firstborn son of each household.
It was contended that the late David Wainaina Waruhiu was registered as the proprietor of Githunguri/Gaitheko/336 (the suit land) as a trustee for himself and his mother’s household.
However, on October, 17, 1980, he transferred the suit land to George Waruhiu.
Samuel Njoroge Waruhiu (deceased), Esther Nyamweru Munene and Solomon Ng’ang’a Waruhiu filed a suit in the High Court seeking orders that they were beneficiaries of the suit property; that as a trustee, their late brother (David) had no mandate to transfer the suit property to the applicant without their consent.
They sought to have the transfer declared null and void.
Also sought was an order stopping the sale of the property or receiving proceeds from such sale.
In a ruling delivered on April 20, 2011, the trial court dismissed the claims and held that the alleged trustee relationship between the late David and the respondents had not been proved by credible evidence.
Secondly, the court ruled that the allegations of fraud as pleaded had not been established to the required threshold and that the claim was time-barred.
Dissatisfied with this decision, the siblings filed an appeal. It was successful and the decision of the lower court was set aside.
The court found that the late Samuel’s testimony on lack of consent and knowledge of the transaction between the late David with regard to the transfer of the suit property was uncontroverted.
It is this decision that precipitated a new application by George.
The Appeal Court judgment delivered in favour of Esther Nyamweru Munene and Solomon Nga’nga Waruhiudeclared them the rightful owners of the land in question through customary trust.
George challenged it, questioning the legal basis that could be used to defeat the statute of limitation in the absence of fraud and what other grounds could be invoked to defeat the indefeasible right to title.
He also faulted the court’s judgment for failing to consider any compensation to the bona fide purchaser for value.
Edited by Henry Makori