Widows battle for palatial home in Mombasa despite court order

Regine Butt, the second wife of the late Mombasa businessman Shahid Butt, tries to gain entry to her Mkomani home in Mombasa County on Friday. [Photo/Kelvin Karani/Standard]

The succession battle over the multi-billion-shilling estate of slain Mombasa tycoon Shahid Butt escalated after the Court of Appeal in Malindi on Friday ordered one of the widows, Akhtar, to vacate his palatial residence in Mkomani.

The order sparked off violence between the warring parties as they went for each other's throats over who was entitled to the palatial residence, which both widows claim.

The bitter court dispute erupted following Butt's murder by unknown gunmen in Mombasa last year. Akhtar moved into the Mkomani home where the deceased had been living with his German wife Regine.

Despite separation from Butt, Akhtar' son Haroon and his wife lived in the same house with Regine but this changed rapidly following the murder.

Live together

Haroon allegedly invited Akhtar into the home after his father's death and evicted Regine sparking the current dispute but in June, the High Court ordered both widows to live together pending the outcome of the matter.

Akhtar went to the Court of Appeal in Malindi seeking orders to evict Regine and assume full ownership of the house. But Akhtar lost the battle and the Court of Appeal ordered her to leave the house immediately.

On Saturday, an attempt by Regine to re-enter the house sparked violence between rival parties.

Regine and her lawyer George Miyare were arrested after the fracas but were later released. Mr Miyare accused police, who were called by Haroon to stop Regine's entourage from taking over the house, of siding with Akhtar and her son.

On Friday, appellate judges Milton Makhandia, William Ouko and Kathurima M'inoti ruled that Akhtar should vacate the house forthwith after her appeal against her removal from the house was dismissed.

Aborted eviction

Miyare, who recorded a statement at Nyali Police Station over the aborted eviction of Akhtar from the house by Regine and some youths, accused the police of siding with Akhtar and Haroon.

He said despite having requested the police to help Regine evict Akhtar, they instead arrested him and his client while in the process of effecting a court order.

He said the order was very clear and it needed nobody's interpretation because Akhtar was told to leave the house forthwith.

"Accordingly, the applicant having failed to satisfy us on the last limbs, the application fails and is dismissed.

However invoking the oxygen principles, we would direct that Akhtar moves out of the suit premises to her earlier residence forthwith or the estate of the deceased gets her some residence elsewhere and takes care of her as the deceased had done in his lifetime," said the judges.

The judges found that despite Akhtar's ill health, the welfare of the children left behind by their father, who was living with them in that house, has to be given priority.

Ill health

"Between the welfare of the children and the ill health of Akhtar, we think the welfare of the children takes priority or precedence. Accordingly, Akhtar should give way pending the hearing and determination of the intended appeal," said the judges.

"Once Regine and the two minors are re-instated in the suit premises, they will continue to reside with Haroon and his wife as had been the case when the deceased was alive," said the judges.

But Regine's attempt to go back into her house on Friday failed after the watchmen in the compound declined to open the gates.

"We have come here to effect a Court of Appeal order which is very clear but we have not been allowed into the premises of my client," said Miyare.

Miyare said their attempts to get help from Nyali police were fruitless.

Miyare said the Court of Appeal's decision was more candid than that of Justice Edward Muriithi who warned that Akhtar should not be evicted but had to live in a separate room on the same premises, which the parties insisted could not work.

In his ruling on June 15, Justice Muriithi ordered the two lawyers, Charles Agwara for Akhtar and Miyare, to supervise the restoration of Regine to her house, while Akhtar was to stay with Haroon in other rooms in the same compound.

But before the order was executed, Akhtar rushed to the Court of Appeal where the parties presented their cases, leading to Friday's ruling.

The judges found that Muriithi was lenient with Akhtar by ordering that she either vacated the house or stayed in another room in the same compound with her son and his wife.

Unchallenged evidence

The Court of Appeal judges, while giving their ruling last Friday, said there was no dispute that Akhtar's ill health was discovered long before Butt was shot dead last year.

"In fact, she was diagnosed with the ailment sometime in 2005 and has been on medication since, catered for by the deceased even when they were living in separation," said the judges.

The judges said there was also unchallenged evidence that Akhtar filed several suits against Butt.

They said the suits were subsequently compromised by a consent order recorded as aforesaid, in which she withdrew all suits on condition that Butt provided her alternative residence, a vehicle and maintenance which included medical care.

The judges said, "It is not disputed that just before Butt passed on, he was staying in the suit premises with Regine, their two children, Haroon Butt and his wife.

There is nothing on record to suggest that their stay was acrimonious. Why should such an arrangement not continue, the death of the patriarch notwithstanding?"

The judges said during this stay there was acrimony between Butt and his wife and even Haroon and his wife. They said there was evidence showing that problems began when Akhtar moved into the house.

"The evidence on record is not clear as to when Akhtar rejoined the household.

But again and we have stated, it appears it is the presence of Akhtar that sparked the misunderstanding," the appellate judges ruled.