Former Nyatike MP Edick Anyanga has won the fight for a contested parcel of land in Nairobi’s Garden Estate, after the Supreme Court declined to hear a second appeal filed by a family that claimed ownership.
A bench of five judges of the Supreme Court dismissed the second appeal filed by the administrators of the estate of Hiram Bere Kinuthia.
The family had initially surrendered the land to the government as a condition of subdivision, but then appealed against the surrender. They also argued that allocating the land to Mr Anyanga and his spouse was illegal.
Kinuthia’s family wanted the apex court to determine whether the four-acre parcel of land was properly surrendered to the government, making it available for allocation to Mr Anyanga.
The court, however, said there was nothing in the appeal that required constitutional interpretation.
“Where no specific constitutional provisions are identifiable as having formed the gist of the court of appeal’s decision, an appellant must, at a minimum, demonstrate that the appellate court’s reasoning and conclusions, when properly contextualised, disclose a discernible trajectory of constitutional interpretation or application,” said the court.
The court said that, while the right to appeal is open to any litigant, it must be exercised within the ‘narrow contours of the jurisdictional limits’, particularly to the Supreme Court.
“In consequence, we are unequivocally satisfied that this appeal has fallen short of the stringent threshold mandated for appeals under Article 163(4)(a) of the Constitution,” said the court.
Kinuthia’s family claimed that their father and Francis Ngigi Matathia were joint owners of the land. They said that the two owners obtained approval in 1983 to subdivide the property, on the condition that a plot be surrendered for public use as a nursery school.
They said that they had successfully appealed against the requirement to surrender the parcel for public use, but later discovered that a title had been issued in 1999 to Joseph Kinyanjui Mwai without their knowledge or consent.
The family said they moved to court in 1999 and obtained an order quashing the title and directing the Registrar of Titles to issue a title to them, but that this order had allegedly not been complied with.
They added that they discovered in 2005 that the property had been transferred to Mr Anyanga when the defunct Nairobi City Council declined to accept their land rent and rates payment.
Alongside Elizabeth Wanjiru Ngigi and Robert Matathia Ngigi, the family challenged the title deed issued to the former MP at the Environment and Land Court.
They sought various forms of redress, including a declaration that registering the property in Mr Anyanga’s name was illegal and that the title should therefore be cancelled.
They also sought compensation of Sh160 million, which was the value of the property at the time.
Mr Anyanga, the chairman of the Kenya Nuclear Regulatory Authority, denied the allegations and stated that he and his spouse had applied for the allocation of the land through Anocma Enterprises Ltd in 2000.
He said that the land was free from alienation and that, having fulfilled the required conditions and paid the stand premium and annual rent, they had taken possession of the land, which they have occupied ever since.
According to the Ministry of Lands, the two families complied with the conditions and surrendered the land for public use, and there was no procedure for appealing against the subdivision.
The land was subsequently allocated to Mr Anyanga and his spouse.
After hearing the case, the Environment and Land Court dismissed the matter and allowed the counter-claim by Mr Anyanga.
The court observed that the land had been lawfully surrendered to the government after subdivision, and that Mr Anyanga had been allocated the parcel legally.
Not satisfied, the family moved to the Court of Appeal and a bench of three judges dismissed the case in December last year.
Kinuthia’s family then went to the Supreme Court, arguing that the case raised constitutional issues which should be determined by the apex court. They faulted the verdict for basing its decision on the alleged falsehood that Kinuthia had signed a surrender document.
