In life, former Cabinet minister Kenneth Matiba risked all in his quest to liberate his country from oppression but in death, his family is still fighting for three prime hotels at the coast.
The High Court in Mombasa had ruled that the hotels were standing on illegally acquired land Matiba was duped into buying by Robert Matano 35 years ago.
But now, his family has gone back to court seeking to reclaim the prime land from a Coast family that has already advertised to sell the Sh300 million property.
Matiba suffered a setback just before his death when the High Court on July 17, 2017 stripped him off the ownership of three prime beach properties in Diani worth Sh300 million. This was as a result of a 2016 recommendation by the National Land Commission (NLC) that Matiba had illegally acquired them from Matano in 1983.
Matiba, a renowned hotelier, had made most of his wealth from the hotels and properties in Diani in Kwale before much of its was seized by auctioneers over unpaid loans.
Matiba’s legal problems over these properties began in 2005 when the Msambweni Land Dispute Tribunal ruled that the three pieces of land did not belong to Matano and former Coast Provincial Police Officer Francis Muoka when they sold them to Matiba in 1983 at Sh6.7 million.
The tribunal ruled in favour of Mohamed Suleiman Shee, Bakari Omar Challa, Ali Omar Challa, Hamisi Ayub Mwanjiti, Abdalla Mbaruk Mwarupi, Rehema Suleiman and Mwanaisha Ali Kheri after finding Matano’s and Muoka’s alleged acquisition of the land through allocation by the State in 1974 fraudulent.
The Challa family, who were squatters on the land in 2005, had approached the tribunal claiming the property and arguing they had bought it from a Mr Mbaruku before 1974.
According to their evidence before the tribunal, Mbaruku bought it from a departing white settler.
Matano entered a defence, but for unknown reasons, Matiba did not attend the proceedings either in person or through a lawyer or representation by family.
The tribunal’s finding was ratified by a resident magistrate’s court in Kwale, laying the ground for the publication of a gazette notice nullifying Matiba’s titles and preparation of new deeds in favour of the Challas. But before this could happen, Matiba rushed to the High Court for judicial review to quash the tribunal’s findings that recommended revocation of his title deeds.
At the High Court, Justice Joseph Sergon suspended the tribunal’s decision on grounds that it (the tribunal) had been illegally constituted. He entered a consent between the state and Matiba quashing the tribunal’s finding altogether in 2005. The Challas continued to stay in the properties in spite of Justice Sergon’s ruling.
Matiba’s family resumed peaceful enjoyment of the properties until November 23, 2016 when the NLC gave a stunning verdict declaring that Mohamed Mbaruk, Hamisi Ayub Mwanjiti and Ali Mohamed Kheri were the rightful and legal owners of the contested properties:
“In view of the foregoing, the Commission determines that the titles held by Alliance Hotels Ltd should be revoked and land reverted to the claimants Mohamed Mbaruk and Ali Mohamed Kheri plot number Galu/Kinondo/ 667, Hamisi Ayub Mwanjiti Galu/Kinondo/ 668 and Omar Bakari Mwachalla Galu/ Kinondo/ 669.”
In the wake of the formation of the NLC, the Challas found a new opportunity to reopen the dispute and succeeded in convincing the commission that they were the rightful owners of the property.
The Challas moved to the Environment and Land Court in Mombasa for ratification of the NLC findings. Ratification led to issuance of new title deeds in favour of Mohamed Mbaruk, Hamisi Ayub Mwanjiti and Ali Mohamed Kheri, replacing Alliance Hotel Ltd. Significantly, the court did not demand that Matiba surrenders the titles in respect of Alliance Hotels for cancellation.
Now, Matiba’s family has returned to the same Environment and Land Court seeking a review of its adverse judgment against them.
One of their prayers is that the Environment and Land Court condemned them unheard and that the Challas have advertised to sell the property. In an affidavit, Matiba’s son Raymond accuses NLC of illegally revoking deeds without giving them opportunity to defend themselves.
Raymond, who is the chairman of Alliance Hotels Ltd, has filed the petition before Justice Anne Omolo under a certificate of urgency. He wants the court to suspend the titles awarded the Challas pending the determination of its suit.
“I have perused notice of motion application dated August 30, 2018 brought under certificate of urgency. The same is certified as urgent and I direct that the same be served on the defendants and the inter parties hearing to be on September 12, 2018,” said Justice Omolo on Monday.
But the three defendants insist they are the rightful owners of the said plots where they have been living for many years.
“We are the registered owner of plot number Galu/Kinondo/ 667 668 and 669 because the titles for Alliance Hotel Galu/Kinondo/667668 and 669 issued in 1994 were revoked by the court after NLC recommended for its revocation,” says Suleiman in a replying affidavit that also alleges that the Matiba family failed to enter defense during the NLC public hearings in 2015 despite being notified.
Suleiman says the NLC recommended the take over of the property after finding that Robert Matano and Muoka had no right to sell the plot, adding that the two could not have been allocated the land in a settlement scheme designed for local landless people. Suleiman argued his family bought the land from Mbaruku at Sh6000 in 1974.