A court has stopped the burial of former Kangema MP Tiras Ngahu following a land tussle.
The order was issued on February 15, after a family filed a petition to stop the burial on claims that the piece of land it intends to bury him on was fraudulently acquired.
In a sworn affidavit, Gabriel Macharia Njoroge told senior principal magistrate P M Kiama that following his father’s death in 1992, he was appointed the administrator of his property.
In a suit in which Ngahu’s wife, Lydia Njoki, has been named as the defendant, Macharia said the former MP held a defective title deed for land parcel LR No Loc9/Kiruri1262.
The land was illegally subdivided from his father’s land LR No Loc9/Kiruri/ 459.
Macharia said before his death, his father Angelo Kanyuanjohi Macharia, acquired a loan from Absa bank for which he attached his farm as collateral.
But the bank failed to release the title deed even after the loan was cleared and the family is in the process of obtaining the original title from the bank.
“The bank is only holding the original certificate of title deed as a lien to date pending issuance of a confirmed grant which has been counteracted by the apparent illegal subdivisions which I am in the process of nullifying,” the affidavit read.
Macharia told the court that investigations conducted by the DCI in Murang’a disclosed that the land parcel LR No Loc9/Kiruri1262 had a bad title, having been obtained through fraudulent subdivisions.
He further said that his family’s cause to resolve the dispute is in suspension pending the issuance of the reconstructed green card and discharge of charge and instigation of succession.
The defendant, Macharia said, is in the process of planning a burial of her husband in a land that is disputed and is a subject in two court cases in Environment and Land Court (Murang'a).
Macharia, through his lawyer Robert Ndung’u, asked the court to consider permanently barring Ngahu’s family from burying his remains in the disputed farm.
Ndung’u said the plaintiff has sought reconstruction of the lost green card from the land registry in respect to his father’s land and is aggrieved by the defendants’ attempts to bury the former MP in the land.
“Should the plaintiff succeed, exhumation shall be an exponentially expensive resolve as opposed to provision for a less contentious burial site now,” the lawyer said.
The lawyer further said that there is a registered caution placed on the disputed land.
The magistrate certified the matter as urgent and issued a temporary injunction restraining Ngahu’s family from burying him in the land pending the hearing and determination of the application.
He further ordered that the former MP's family be served for an inter partes hearing on March 9.
An obituary published in a local newspaper did not indicate the date of his burial service, but relatives said the family intended to hold a requiem mass next Monday at Our Lady of The Rosary Catholic Church, Ridgeway.
A funeral service would follow at General Kago Stadium in Kangema town on Wednesday after which he would be buried in the disputed Tuthu farm.
In another suit filed by Macharia against Ngahu and his wife in 2017 in High Court in Murang'a, Ngahu denied that he fraudulently acquired the land.
Ngahu said the plaintiff’s father had already subdivided the land into three parcels: Loc9/Kiruri1260, Loc9/Kiruri1261 and Loc9/Kiruri1262 by the time he died.
He purchased Loc9/Kiruri/1262 that is five acres from George Gachathi at Sh2.4 million in 2008, saying he did due diligence and had no notice of any taint on the title deed nor third party claims.
It is only two years later that Macharia sued him in suit 118 of 2010 in Murang’a law courts, despite being the sixth registered owner of the parcel.
Macharia, on his part, told the court that his father guaranteed him a loan from Barclays Bank, now Absa, using the original land’s title deed and that he defaulted in payment and that his father turned to his cousin, Anthony Githere, to help repay it.
In return, Macharia said his father allowed Githere to harvest tea bushes and trees on the land to repay himself but Githere fell sick and died in the year 2000.
He said in 2005, he got information that the land had been subdivided and made inquiries only to be informed that the green card was missing at the land registry. He then filed a police report.
Former county land registrar Alice Gisemba confirmed that the original land had three title deeds: Loc9/Kiruri1260, 1261 and 1262, and that the latter was registered under Ngahu.
She told the court that the green card for the original land was missing in the registry but confirmed that Macharia’s father completed the subdivision in 1992, after which the original title was closed and the resultant titles registered.
She also confirmed that Ngahu purchased the land in 2008 after many other buyers before him.
Justice Grace Kemei, in her judgment on February 27, 2020, said the evidence showed that the three title deeds produced from the original title deed were registered under Macharia’s father in 1992.
“There is no evidence that Ngahu was a party to the subdivision of Loc9/Kiruri/459 in 1992….If that be the case, he cannot turn around and accuse the second defendant of subdividing the suit land,” she said.
“It is the finding of this court that the plaintiff has not proven fraud against the defendants at all,” she said before dismissing the case with costs to the defendants.
Ngahu passed away while receiving treatment in a Nairobi hospital on February 12 after suffering from stomach cancer.