Kilifi farmers wants Court of Appeal to restore Sh100 million property to him

A man has appealed a High Court decision to award a beach plot worth Sh100 million that he is claiming to a private developer.

Raphael Kawala is fighting for the ownership of the property against Mount Elgon Beach Properties, the current legal owners of the front beach plot at Wera Beach. It is used as a fish landing site.

In his appeal, Mr Kawala said he had lived on the 0.75 hectare parcel for more than 12 years and was engaged in farming and fishing.

Kawala said his father, Karisa wa Kadzora, had moved to the land in the 1950s and lived there until 1966.

He said he had constructed a house where he was staying with his family. A neighbour corroborated his story.

“I was engaged in farming and fishing activities in the nearby beach to fend for my family before I was thrown out by the developer,” said Kawala.

In December 5, 2017, the court in Malindi awarded the property to Mt Elgon Beach Property after finding that Kawala had not proved his ownership claim, prompting him to appeal.

“In view of the evidence of the chief of the area whose testimony was that the applicant's (Kawala) home is in Ngerenya, I'm convinced that the applicant has never been in possession of the suit property for over 12 years or at all,” read the judgement delivered by Justice J O Olola in Malindi.

In his appeal, Kawala said the court erred by disregarding the evidence of Patrick Vidzo Choya, a neighbour who said Kawala had lived on the property for more than 12 years.

“The trial court failed to take judicial notice that the appellant had been in continuous and uninterrupted occupation of the suit property for over 12 years. Therefore, he was entitled to be declared the owner under the doctrine of adverse owner,” said his lawyer, Gikandi Nguibuni.

Coconut trees

Mr Nguibuni said the court failed to consider the photographic evidence showing Kawala’s house, mango and coconut trees as produced before it gave verdict.

He said the court relied on the evidence of the Roka chief, who did not fall under the jurisdiction where Kawala’s location is located.