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Kanyotu family suffers new setback in Sh10bn Thika land fight
Justice Oguttu Mboya rejected the bid by one of Kanyotu’s widows to introduce the affidavit, which she said was filed in a succession case pending in court.
The Environment and Land Court has dismissed an application seeking to introduce fresh evidence in a Thika land ownership dispute, dealing a blow to the family of the late chief spymaster James Kanyotu who are fighting to reclaim the property from Marriot Africa International Limited.
Justice Oguttu Mboya rejected the bid by one of Kanyotu’s widows to introduce the affidavit, which she said was filed in a succession case pending in court.
The judge said the greater interest of justice could not be served by circumventing or short-circuiting known provisions of the law which were designed to ensure that litigants engage at arms-length and/or are on an equal footing.
“In any event, the right to fair hearing, fair trial, and the due process of the law, which are critical components of the rule of law, cannot be sacrificed at the altar of [sic] greater injustice,” said the judge.
A section of the family of the former spymaster has contested the sale of a 500-acre parcel of land in Thika town estimated to be worth Sh10 billion.
Kanyotu died in 2008, leaving behind an estate estimated to be worth Sh20 billion.
Willy Kihara, one of Kanyotu’s sons contested the sale of the land to Marriot Africa International Ltd.
Marriot claims ownership of the land, arguing that it bought it in 2012 from Trendsetters Investments Ltd, which allegedly purchased the land from Kanyotu’s Kangaita Coffee Estate Ltd for Sh700 million in 2011.
Mr Kihara was testifying in the case when a lawyer representing one of the widows sought to use the affidavit during the cross-examination.
The lawyer told the court that the affidavit in question had been filed in a case pending before the court and was therefore a public document and could therefore be produced and relied upon in court, even if it had not been discovered at the time of the pre-trial.
Other parties in the case, including the Attorney General, opposed the application, arguing that the document should have been produced during the pre-trial proceedings.
Justice Mboya agreed, saying it was important to emphasise that the filing and discovery of documents was a critical segment of the hearing and trial of cases.
“To my mind, the discovery of documents constitutes a critical tenet and/or aspect of the right to fair hearing; fair trial, and the rule of natural justice. In this regard, the 1st defendant to the counterclaim cannot seek to spring a document during intended cross-examination and thereafter be heard to contend that the usage of such a document served the greater interests of justice,” said the judge.
The judge held that the use and production of a document that was neither filed nor discovered during the pre-trial conference would be offensive to the right to a fair hearing and, in any event, would be tantamount to promoting litigation by ambush and surprise.
“Additionally, where a party, in this case, the 1st Defendant to the counterclaim seeks to invite the court to take judicial notice of a particular document and/or issue, it behooves the party to discharge the burden of proving that the document, issue or matter which the court is being invited to take judicial notice of, has indeed accrued the requisite notoriety to warrant judicial notice being taken of same,” said the judge.
Marriot moved to court seeking to block the Kanyotu family from reclaiming the land. It has named Kanyotu’s two widows -- Margaret Nyakinyua Murigu and Mary Wanjiku Kanyotu, Mr Kihara, and Kangaita Coffee Estate as respondents in the case.
Ukombozi Holdings Ltd has been named as an interested party.
Mr Kihara and other beneficiaries of the estate have challenged the sale, saying that the land was subject to a succession case.
He argues that Kangaita Coffee Estate has bank accounts into which proceeds from the sale of any property belonging to the estate should be paid.
But in the case of the Thika land, no money had been paid into any of the accounts for distribution to the beneficiaries or to pay off the estate’s debts.
The family said that on November 29, 2014, and May 31, 2019, they published in the local dailies a caveat, warning buyers against illegal purchase of the estate’s property.
But Marriot said the adverts were fraudulent and misleading as it purchased the land from Trendsetters Investments Ltd and is the legal owner.
Documents filed with the court show that the land has since been subdivided into more than 1,000 plots and sold to third parties.
