Unresolved property row between Kibaki, partners drag on 14 years later

A property dispute featuring former President Mwai Kibaki and his business partners has escalated as a fresh application has been filed at the High Court.

In a fresh application filed before Justice James Olala, the applicants have among other orders sought to be allowed to enjoin dependents by substituting four deceased partners.

The property, Mathingira Wholesalers Company Limited House, a commercial one-storey building in Nyeri town was jointly acquired by Kibaki and his eight childhood friends in 1976.

The eight co-owners are; Kimwatu Kinyungu, Gadson Gitonga, Samuel Githinji Kibaki, Kiiru Gachuiga, Kibera Gatu, Philip Gichuhi, Muruthi Ng’ang’a and Francis Gathung’wa.

However, Kimwatu, Gachuiga, Gitonga, Gatu, Githinji, Gichuhi, Ng’ang’a and Gathung’wa have since died, leaving Kibaki as the only surviving original shareholder.

Through lawyer Gibson Kamau Kuria, the applicants have said Gatu and Gitonga died during the pendency of the suit but their legal representatives were never substituted.

“Gachung’wa also died during the pendency of the appeal. Legal representatives of two other namely Gichuhi and Ng’ang’a are not enjoined,” the lawyer added.

Appearing for Kibaki, Kuria has also applied for the release of rent held in a KCB account since 2014 for distribution to the beneficiaries.

According to Kuria, on February 18, 2013, the court ordered that the rent which the building yielded be paid to an interest-earning joint account under his (Kuria) and Lucy Mwai’s law firms.

Kuria is seeking the nod of the court to distribute the income under his law firm.

All the eight co-owners, he observed, including those who were not parties to the counterclaim, are beneficiaries of the Court of Appeal judgement, hence need to be enjoined for the purposes of the execution of orders.

“The families of the defendant wish to access the rent from which they have been kept away for 14 years,” Kuria avers in a matter set for mention on February 7.

He said in light of the Court of Appeal ruling in Civil Appeal number 6 of 2017, the court ruled in favor of Kibaki and his friends by giving them control of the prime property.

“The defendants to the counterclaim never had any locus standi to bring the suit. They were hijackers of a vehicle that has been restored to the order by the Court of Appeal. The owner of the suit property are those who purchased it in 1976,” Kuria says in his latest application to the court.

Mathingira Wholesalers Company Limited House has been in legal dispute for over 14 years now after a group of directors claimed to have bought shares in the firm.

A group of directors led by Peter Munuhe, Sammy Kiiru and James Kanyi had claimed that by buying shares in Mathingira, they automatically became legitimate shareholders and directors of the company.

In her judgement on October 12, 2016, Justice Lucy Waithaka declared the Kibaki team and the newly incorporated members as legal directors of the company.

Appellate judges Justices Fatuma Sichale, Agnes Murgor and J Kantai, however, on March 21, 2018, also ordered two sets of directors to jointly continue managing the company.

On November 15, 2013, the ownership battle saw Kibaki testifying in court, becoming the first retired president to take the witness stand.

When the former Head of State was cross-examined for almost an hour before Justice Anthony Ombwayo, he told the court that unscrupulous people had taken over the firm and had withheld rent proceeds since 2008.