Supreme Court dismisses decades-long land dispute against Nyatike MP Edick Anyanga

The Supreme Court of Kenya has brought to an end a protracted legal battle over a four-acre parcel of prime land in Nairobi’s Garden Estate, dismissing an appeal against former Nyatike Member of Parliament Edick Omondi Anyanga and his wife, Anne Anyanga.

In a landmark judgment delivered by a five-judge bench led by Deputy Chief Justice Philomena Mwilu, the apex court unanimously ruled that the appeal by the estate administrators of the late businessman Hiram Bere Kinuthia did not raise constitutional issues sufficient to invoke the court’s jurisdiction under Article 163(4)(a) of the Constitution.

“While land rights are protected under the Constitution, not every claim touching on property ownership automatically raises constitutional interpretation or application. This Court lacks jurisdiction to entertain this appeal,” read the ruling by Justices Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and Isaac Lenaola.

The bench upheld earlier decisions by the Environment and Land Court (ELC)  and the Court of Appeal, which both declared that the land, valued at over Sh 400 million, belongs to the Anyangas. 

The Supreme Court also confirmed a Sh 500,000 general damages award to the couple for loss suffered due to delays in developing the land, in addition to legal costs.

The dispute stems from the subdivision of LR No. 28/6 in the early 1980s.-era subdivision from the original LR No. 28/6, which was co-owned by the late Hiram Bere Kinuthia and his associate, the late Francis Ngigi Matathia. 

The contested parcel was earmarked for surrender to the Nairobi City Council for public utility use, specifically, a nursery school, as a condition for the subdivision approval.

Kinuthia’s estate, now represented by his son Charles Gitonga Kinuthia, argued that no such surrender was ever completed, and that subsequent allocation to third parties, including the Anyangas, was fraudulent.

They further claimed that in 1999, a title to the land was irregularly issued to a third party, Joseph Kinyanjui Mwai, prompting them to successfully file a judicial review application that quashed the title. 

However, no new title was issued to Kinuthia thereafter, and in 2005, the family discovered the land had been transferred to Hon Anyanga and his wife Anne Anyanga, who were trading under Anocma Enterprises Limited.

The Kinuthia filed suit at the Environment and Land Court (ELC), seeking cancellation of the Anyangas’ title or, in the alternative, compensation equivalent to the property’s market value,pegged at Sh160 million.

Claiming the transfer was fraudulent and orchestrated in collusion with government officials, including the Registrar of Titles and Commissioner of Lands, he sued in the ELC alongside Elizabeth Wanjiru Ngigi and Robert Matathia Ngigi.

The Anyangas, through their company Anocma Enterprises Ltd, maintained they had applied for the land lawfully in 2000, paid all fees, and were issued with a valid title. 

They counterclaimed in court, stating that the property was unallocated government land at the time.

“The suit property had been lawfully surrendered to the government upon subdivision... the 1st and 2nd respondents were legally allocated the suit property,” ruled Justice Loice Komingoi of the ELC in her judgment delivered on  July 28 2022, dismissing Kinuthia’s claim and awarding the Anyangas Sh 500,000 in damages.

The Court of Appeal upheld that decision on  December 20 2024, prompting the current appeal to the Supreme Court by Kinuthia’s estate, represented by his son and co-administrator Charles Gitonga Kinuthia.

In the Supreme Court, the Attorney General and Registrar of Titles argued that Kinuthia's estate lacked locus standi, the legal right to sue, since the petition had not clearly disclosed or identified the administrators. 

However, the court found this argument to be disingenuous, noting that the respondents had actively participated in proceedings in both lower courts without objection.

“The respondents are estopped from now contesting the legal standing of the administrator of the appellant’s estate,” the supreme court judges held. 

“Any defect in the formal citation... amounts to a procedural irregularity curable under Article 159(2)(d) of the Constitution.”

On the crux of the matter,whether the Supreme Court had jurisdiction,the bench ruled that the appeal was anchored on facts, not constitutional questions. 

The appellant  had cited Articles 3, 27, 50, 60, and 159, alleging violations of constitutional land rights and fair trial principles.

However, the court concluded that the case did not meet the threshold set under Article 163(4)(a), which only permits appeals involving the interpretation or application of the Constitution.

“The issues raised by the appellant were grounded on purely factual and statutory considerations, not constitutional interpretation or application,” the court ruled.

“It is well established that for an appeal to lie under Article 163(4)(a), it must originate from a decision involving constitutional interpretation. Where the Court of Appeal made factual findings on land ownership, this Court lacks jurisdiction.”

The judges further cautioned counsel against raising new issues at the Supreme Court stage, emphasizing that introducing fresh evidence and unpleaded claims would amount to turning the apex court into a court of first instance—contrary to its mandate.