Kirinyaga Governor Anne Waiguru is fighting to hold onto her palatial home in the upmarket Kihingo estate in Kitisuru, Nairobi.
She has sued the developer, Kihingo Village (Waridi Gardens) to demand that her title be issued. The developer then counter-sued to evict her for alleged non-payment of Sh266 million rent since 2015.
The court suspended the eviction demand until the case for Waiguru's title is determined.
Lawyer Chris Kabiro had filed an application under certificate of urgency claiming that House No 1 in Kihingo Village belongs to him and not Waiguru.
Last week, on June 30, Justice Elijah Obaga in the Land Court allowed Kabiro’s application and directed the parties to appear in court on November 24 to fix a hearing date. Obaga also directed that whoever wish to be enjoined in the case to do so before the next mention date.
In court documents, Kabiro claims that in 2013 the High Court issued an injunction restraining Kihingo from selling the suit property.
Last year Justice Elijah Obaga issued temporary orders stopping Kihingo Village from evicting Waiguru and directed the parties to settle the dispute through an out-of-court agreement.
Waiguru's ownership of the house has been thrown into doubt by the ongoing legal battles between former Tetu MP Ndungu Gethenji, the other 54 residents of Kihingo Village, and his brothers Bob and Gitahi.
Waiguru is suing KVWG, the developer, for not registering her ownership of House 1 in Kihingo Village. In her plaint, she says she paid Sh40 million to KVWG in a sale agreement dated September 2015. She was planning to raise an additional Sh40 million to complete the purchase through a mortgage with KCB.
The Gethenji family – Ndungu, Bob, Gitahi and their late mother Hilda – have equal shares in Kihingo Village (Waridi Gardens) Limited, the developer of Kihingo Village, the upmarket housing estate in Kitisuru, Nairobi.
In its statement of defence, KVWG, the developer, claimed that Ndungu Gethenji unilaterally made a deal with Waiguru in 2015 that substantially undervalued the house. “The plaintiff (Waiguru) was transacting with one Ndungu Gethenji who was acting ultra vires”, the defence states.
KVWG also claims to have only received Sh8 million of the money paid by Waiguru. KVWG said that Ndungu had no authority to sell the house because there was no company meeting or board resolution authorising the sale of House 1 to Waiguru.
Furthermore, KVWG states that in 2013 the former occupant of House 1, lawyer Chris Kabiro, had placed an injunction on any sale of the property and that injunction was still in place. The developers argued that this meant that any alleged sale to Waiguru was null and void.
Kabiro was originally supposed to receive House No 1 in lieu of legal fees for his work on the sale of Kihingo Village houses but he subsequently fell out with the developer.
Waiguru’s lawyer responded that her sale agreement was binding since it was signed by Ndungu Gethenji, the CEO of the developer KVWG, and by the late Hilda Gethenji in September 2015. The sale agreement was also stamped with the company seal. Waiguru also claimed that the Kabiro injunction had not been registered against the head title of Kihingo.
Waiguru said that she paid a total of Sh40,687,170 for the house in 2015 through Sh10m to Aberdare Safari Hotels Ltd (the Gethenji company that owns Treetop Hotel and Outspan Hotel in Nyeri); Sh20 million to lawyers Mohammed Muigai; Sh2,687,170 to Shamsher K Ltd.; and Sh8 million to KVWG through lawyers Hamilton, Harrison and Matthews.
Waiguru demanded orders from the court halting any attempted eviction pending determination of her suit to retain the property.
Waiguru was reacting to a demand by KVWG in February 2020 for her to vacate House 1 unless she paid Sh266,400,000 shillings for back rent since 2015 and a further Sh250 million if she wanted to buy the house.
On June 10, Justice Alfred Mabeya delivered a ruling in the High Court that House number 1, Kihingo Village was still the property of the developer, KVWG, rather than Waiguru and could be legally attached.
KVWG had been sued by Frame Consultants for non-payment of Sh7 million awarded to them in arbitration in 2018 but only Sh2.5 million was paid in 2019.
Frame Consultants had gone to court to determine whether KVWG had assets that could be attached to clear the debt. Justice Mabeya ruled that Frame Consultants could now proceed to “attached the said property (1, Kihingo Village) or garnishee the proceeds therefrom”.
In affidavits from two of its directors, Ndungu Gethenji and Bob Gethenji, KVWG argued that it was unable to pay because Anne Waiguru, the Kirinyaga Governor and purchaser of Plot 1, Kihingo Village, had not yet paid an outstanding balance of Sh40 million on the purchase price of Sh80 million.
The developer appears to have deliberately disclosed to the court that it owned 1, Kihingo Village in an attempt to force law firm Hamilton, Harrison and Matthews to release the mother title of Kihingo Village which has been tied up as a result of the long drawn-out litigation between Ndungu Gethenji and the other 54 owners on the Kihingo Village estate.
In his affidavit, Ndungu prayed that the law firm “be directed to release the mother title of the property in order to facilitate the registration of the sold unit. He attached an Agreement for Lease dated 25/9/2015 between the 1st defendant and one Anne Mumbi Waiguru for lease of House Number 1D on LR.NO. 27754, Nairobi,” the judge wrote in her ruling.
The house has not yet been transferred to Waiguru because the developer KVWG does not have access to the mother title to register the lease. The mother title is in the process of being transferred to Kihingo Village (Waridi Gardens) Management Ltd in which all 55 Kihingo houses hold one share each. Last year the High Court confirmed that Ndungu Gethenji did not hold 60 B shares, through Kihingo Village Management One, to give him overall control of Kihingo Village.
