Surveyor's Error Makes It Hard For Thika Family To Repossess Sh.1.2 Billion Land

Surveyor's Error Makes It Hard For Thika Family To Repossess Sh.1.2 Billion Land

Mary Dames' family in Thika has been unable to regain 85.3 acres despite court ruling in their favour. For more than 15 years the family has successfully fought previous legal battles to repossess the land valued at Sh1.2 billion. However, each time, another case comes ups from contestants further delaying repossession.

On September 4, Lang'ata Development Company Limited that had bought land from the family lost another attempt to keep excess 85 acres after the Supreme Court dismissed its appeal against a ruling holding that the land belongs to the Dames.

Less than a week later, Joseph Githu Ibau and 73 others who had bought land from Lang'ata Development Company filed an objection to making of a grant for the representation of Mary Dames estate.

In the objection, Ibau said there was an active case at the Environment and Land Court in Milimani where they had sued both the land selling company and Mary Dames.

"If the grant is given, the land will be distributed and therefore the court will have nothing to base its ruling on," Ibau said.

The case is set to begin in May next year. Mary Dames died last year at 84, having spent 16 years trying to recover the land left to her by late South African husband.

Back in 1989, Dames had sold 672 acres, more than three-quarters of her 1,062 acres to Lang’ata Development Company Ltd at Sh23,500 an acre.

She divided the land into four portions with different acreages of 27 acres, 62,672 and 300 acres and a survey exercise was carried out. The transfer was duly registered and a certificate of title issued to the company on August 25, 1992.

But there was a problem. Whether it was a mistake or deliberate, Dames lost 85.3 acres to the company, that she would fight to recover.

Surveyors who drafted the sale documents put the size of land sold at 306 hectares, which translates into 757.3 acres.

Mary did not realise her loss until her name appeared in a newspaper among people who had defaulted on payment of land rates to the municipal council. 

The land the council said she owned was less 85.3 acres which led her to dig and eventually discover the mistake. She went to court in 2004 but the case dragged on, interrupted by numerous adjournments and unpredictable hitches until after 12 years.

On February 12, 2016, High Court judge Lucy Gacheru ordered Lang’ata Development Company to return 85.3 acres to Mary or compensate her.

The company, in turn, went to the Court of Appeal to contest the decision, arguing that no fraud was proved by the widow. They then turned the heat on her land surveyors.

The Court of Appeal had ruled that the land in contention legally belonged to Mary and criticised the land-buying company for dishonesty in executing the sale agreement.

Aggrieved, the company moved to the Supreme Court seeking to have the late appeal allowed. They also wanted the court to certify that the intended appeal raised questions of general public importance on interpretation and application of Section 23 of the Registration of Titles Act (now repealed by the Land Registration Act No. 3 of 2013).

Supreme Court judges found that the company had failed to satisfactorily explain the “inordinate delay in lodging the notice of appeal to warrant an exercise of the court’s discretion to enlarge time”.

The judges also declined a request by the company led by its director, Eliud Kariuki, to review a ruling of the Court of Appeal dated July 19, 2019, that had stopped it from taking the battle, which had been in court since 2011, to the Supreme Court.

"I don't know how long this will take but I hope I am alive to eventually fulfil my late mother's wishes," said John Dames, Mary's son.