Equity wins suit to stop Sh300m land payout to Gatabakis

DNEquitybank2405

Equity Bank branch in the Kibera slums of Nairobi. 

Photo credit: File | Nation Media Group

A judge has cancelled a Sh300 million award to the family of the late Kiambu tycoon Samuel Gatabaki against the government for trespass after Equity Bank convinced the court that it has interest in the land.

The Gatabakis were awarded the amount last year as compensation for their land that was forcibly taken over by the government to construct the Northern by-pass. 

Equity Bank successfully argued for the setting aside of the judgment saying it had a stake in the land and that there was a mistake in the decision as part of the land that the Gatabakis used to seek compensation had ceased to exist.

“From the foregoing observations, I am satisfied that the Applicant (Equity Bank) has demonstrated the existence of errors or mistakes apparent on the face of record. Furthermore, the Applicant has also demonstrated sufficient cause to warrant review and variation of the judgment and the resultant decree of the court,” Justice Oguttu Mboya said.

The Environment and Land court judge said in a ruling on January 16 that the circumstances surrounding the matter necessitate the intervention of the court.

“Suffice it to underscore that the issues being avered to and espoused by the Applicant may require in-depth analysis/interrogation and determination. Such interrogation can only accrue if the judgment herein is reviewed and liberty is granted to the Applicant to join the proceedings,” said the judge as he allowed the lender to join the proceedings as a respondent.

In a judgment last September, Justice Mboya accused Kenya Urban Roads Authority (Kura) for trespass for constructing the Northern Bypass on the disputed land.

The judge said Kura’s move to construct the road without compulsorily acquiring the land and compensating the Gatabakis was not only barbaric but also constituted a serious affront to their fundamental rights.

Then, the judge directed the National Land Commission (NLC) to commence the process of compulsory acquisition of land where the road is constructed, within 60 days from the date of the judgement.

“Owing to the fact that there was no compulsory acquisition of L.R No. 4508/1 and coupled with the finding that the construction of the road thereon, constitutes and amount to trespass, it is common ground that the Petitioners’ rights were indeed violated and/or infringed upon,” said the judge.

In the latest application, Equity Bank said it holds a valid charge over the land.

The lender said the disputed land arose from amalgamation of various parcels of lands including L.R No. 2980/1; 5980/3 and 4508/1, respectively.

According to Equity Bank, the amalgamation was fraudulently undertaken without the involvement of and notice to the lender.

The bank said the amalgamation was undertaken by Peter Kiarie Muraya and his wife Susan, in connivance with various surveyors. The bank said the legality of the title being relied upon was in question.

Equity bank further said widow Nancy Gatabaki and the administrators of the estate of Dr Gatabaki filed the case without disclosing to the court that the land had been indeed subdivided and the resultant subdivisions amalgamated.

The bank said it had direct stake and interests in the petition and the property.

The Gatabaki’s opposed the case saying Equity Bank failed to establish or demonstrate that it had bona fide charge in respect to the land.

The family said the lender was obligated to carry out and undertake due diligence to ascertain the validity of the suit property before the charge.

In any event, the Gatabakis contended that they were not notified or involved in the process leading to the amalgamation of the various plots and the creation of the title in contention.

The judge said in the ruling that the proceedings and judgment impacted and adversely affected the interests of the lender.

“In this regard, it suffices to posit that the Applicant is a necessary party,” said the judge.

Justice Mboya directed the Gatabakis to file an amended petition, including Equity Bank as a party, within 14 days from the date of the decision.


PAYE Tax Calculator

Note: The results are not exact but very close to the actual.