A judge has declined to strike out a case brought by an administrator of the estate of the late provincial commissioner Charles Karuga Koinange seeking to recover part of the land where upmarket Village Market mall and Tribe Hotel sit.
Justice Oscar Angote dismissed the application to strike out the case even as the three administrators of the estate could not agree whether the contested land forms part of the estate.
The Environment and Land Court judge said he needs to interrogate the matter further, because of the difference between Peter Mbiyu Koinange, Isabella Wanjiku Koinange and Samuel Karuga Koinange-who are the co-administrators of the estate.
“I say so because although the 3rd plaintiff (Samuel) has argued that the suit ought to be struck out on the ground that it does not form part of the estate of the deceased, the 2nd plaintiff (Isabella) stated that the suit property belonged to the deceased estate and formed part of the properties listed in the grant,” the judge said adding that a certificate of confirmation of grant, which was tabled in court, supported the position.
Isabella, a daughter of the former provincial commissioner wanted the case filed against Greenhills Investment, which owns the mall, struck out arguing that it was filed by her brother Peter, without her knowledge and that of Samuel.
Peter filed the case in November 2022 seeking to have the family declared the owners of the property and eviction of Greenhills Investment.
He alleges the owners of Village Market and Tribe Hotel acquired the title to the land fraudulently and should be evicted and made to pay them damages for illegal occupation or compensation at the current market rates.
Peter also wants Sh8.5 billion loan that Greenhills Investment tapped from KCB Group to develop Village Market to be declared invalid. Isabella through senior counsel Philip Murgor submitted that she did appoint the firm of Ashford & Co Advocates to act for them.
She said that the family was claiming a portion of the land and not the entire parcel where the two establishments stand.
Isabella said the family surrendered the land years back to the government and were compensated before her father died.
She added that Greenhills Investment took a small section belonging to the family -- 0.2642 hectares – and that although the family was planning to seek recovery of the land, they hadn’t agreed.
She further said Peter also gave instructions to the advocate to recover another land from a firm identified as Mitithiru Company Ltd, without the knowledge of other administrators. The application was supported by Samuel who said the contested property- Nairobi/block 91/132, did not form part of the estate of Mr Karuga.
Through senior counsel Kamau Kuria, Samuel said there is no proof that the land belonged to his late grandfather, Mr Karuga. He maintained that the land was surrendered to the government in 1991.
He said they participated in the mediation process called to bring the beneficiaries together for purposes of distributing the estate and signed an agreement but the issue of the contested land was not brought up. They maintained that the case was instituted without their consent as the co-administrators do not have a common advocate.
In the ruling, the judge said co-administrators should consider acting as a unit in all matters pertaining to the Estate.
Justice Angote said Peter should be given a chance to be heard on the issues he has raised and allow the court to make a determination as to whether he was justified in bringing the case.
“The court is left guessing as to whether there is a conspiracy amongst the co-administrators to either leave out the suit property from the succession proceedings of the estate of the deceased or that the 1st defendant (Greenhills Investment) vis a vis averment that the suit property forms part of the estate of the deceased and the same was acquired fraudulently,” said the judge.
Samuel was the younger brother of the former powerful minister in the Jomo Kenyatta era-Mbiyu Koinange.
He died in 2004, leaving behind a multi-billion shilling estate consisting of land, shares in various companies, money in bank accounts and other investments estimated to be worth more than Sh15 billion.
