The Environment and Land Court in Nairobi has dismissed a petition challenging the ownership of a prime Nairobi land domiciled in the Upper Hill area.
Rajkosmag Company Limited, the plaintiff, had filed the petition seeking to have the property, Land Reference Number 209/6507, handed to the firm based on an alleged sale agreement with Kenya Railways Corporation in 2003.
In the case, Kenya Railways Corporation, Kenya Railways Corporation Retirement Benefit Scheme, Nairobi Chief Land Registrar, Attorney General, and Primix Enterprises Limited were listed as defendants, respectively.
Former Nairobi Governor Mike Mbuvi Sonko owns Primix Enterprises Limited. The company is the current occupant of the land.
The land now hosts the Sonko Rescue Team, which provides emergency rescue and social support services to Nairobi residents.
According to the Rajkosmag, Kenya Railways Corporation advertised the sale of the suit property, namely L.R No. 209/6507 in the daily newspapers in 2002 and thereafter, they expressed an interest in purchasing the suit property.
Rajkosmag told the court their expression of interests was acknowledged by the Kenya Railways (1st Defendant) culminating into a letter of offer, dated October 15, 2002, being issued in favour of them.
Upon the issuance of the letter of offer, Rajkosmag said Kenya Railways accepted their offer to purchase the suit property.
Subsequently, Rajkosmag said together with the Kenya Railways, they entered into and executed a sale agreement dated February 7, 2003.
It is on the basis of the sale agreement that the suit was filed claiming the ownership of the property.
Rajkosmag told the court that despite entering into the sale agreement under reference, the 1st Defendant failed to perfect the transfer and registration of the suit property in her favour.
Rajkosmag alleged fraud on the part of Kenya Railways in effecting and facilitating the registration of a vesting order in favour of the Kenya Railways Corporation Retirement Benefits Scheme (2nd Defendant).
At the same time, the firm alleged fraud on the part of the Chief Lang Registrar of Nairobi for issuing a provisional certificate in favour of the 2nd Defendant and failing to register the transfer documents on their behalf.
But in a rejoinder, the Kenya Railways Corporation dismissed the allegations by the Plaintiff saying no deal was entered with the plaintiff over the purchase of the property.
Kenya Railways Corporation added that the receipt linked to the sale agreement as evidence of payment was issued to someone else, not the plaintiff.
KRC denied receipt of any cash from Rajkosmag with regards to the payment saying the banker's cheque adduced as evidence in court was made with respect to another property and not the one that is subject to the lawsuit.
Kenya Railways Corporation Retirement Benefit Scheme dispatched its Estate Manager Audrey Chepkoech as a witness in the case.
She averred that the property in question was leased to Sonko’s company (Primix Enterprises), the 5th defendant in the case.
Chepkoech told the court that they advertised the sale of the suit property and thereafter received various tenders including from the company associated with Sonko, Primix Enterprises.
It was Chepkoech testimony that Sonko’s company emerged as the highest bidder.
The witness averred that Kenya Railways Corporation thereafter entered into and executed a sale agreement with the Sonko’ company.
However, the witness added that the suit property has not been transferred to Sonko’s company even though the company currently occupies the property.
Chepkoech denied claims of ownership of the property by the Plaintiff saying the Kenya Railways Corporation Retirement Benefit Scheme has never entered a sale agreement with the Plaintiff.
She further added that the lease in favour of Sonko’s company commenced in the year 2017 and the firm only owns a portion of the suit property.
Chief Lands Registrar, Nairobi, witness on the hand told the court that the Rajkosmag failed to provide the requisite documents to facilitate the transfer of property as requested.
Sonko as the Director of the Primix enterprises also testified in the case.
He told the court that the property in question has been leased to Sonko Rescue Team which has occupied it since 2017.
He told the court that his company was issued with a notification of the award of the lease and thereafter generated a letter of acceptance.
The former governor said he purchased a section of the suit property and he is now in the process of concluding the sale transaction.
In his ruling, Justice Oguttu Mboya cited the Kenya Railways Act, which underpins the necessity to procure and obtain the consent of the board of directors when purchasing such a property
He also cited Section 13[1] of the State Corporation Act which underpins the necessity to procure the approval of the minister and the national treasury.
Oguttu noted that Rajkosmag failed to produce the consent of the board of directors of the Kenya Railways Company and the requisite approval of the minister and the national treasury.
As such, the judge concluded that the sale agreement the Plaintiff was relying on was illegal, unlawful and void for all intents and purposes.
“…the Plaintiff is before the court seeking to have the court to help same to enforce an illegal contract which is contrary to and in violation of mandatory provisions of the Kenya Railways Act and State Corporation Act, respectively,” Justice Oguttu stated.
“Notably, a court of law cannot lend its might to towards the enforcement of an illegal contract.”
Justice Oguttu also agreed with the evidence of the Kenya Railways Corporation Retirement Benefits Scheme which stated that the receipt provided by the plaintiff was of someone else.
He noted that the puzzle that remains unresolved relates to how the sale agreement executed on February 7, 2003, would reflect that the full purchase price had been paid yet that is not the correct position.
Consequently, Justice Oguttu ruled that the plaintiff did not enter into and/or execute any lawful sale agreement/contract with the Kenya Railways Corporation as claimed.
“To the contrary, the documentation relied upon and propagated by the Plaintiff constitutes blatant fraud….In a nutshell, it is my finding and holding that the Plaintiff is not entitled to the reliefs sought or at all,” Justice Oguttu stated.
At the same time, Oguttu ruled that the petition was time-barred and that the claims presented by Rajkosmag were filed outside the prescribed timelines.
“There is no gainsaying that the Plaintiff herein has not proved his claims to the requisite standard,” Justice Oguttu said in his ruling.
Consequently, based on the aforementioned findings, Justice Oguttu dismissed the case.
“The Plaintiff’s suit be and is hereby dismissed. Costs of
the suit be and are hereby awarded to the Defendants. Same to be agreed upon
and in default to be taxed in the conventional way,” Justice Oguttu Ordered.
