Judge wants 28-year land case expedited

A piece of land [File, Standard]

The High Court in Kitale wants a land case filed nearly three decades ago expeditiously heard and determined.

The case, pitting two families over 15.5 acres in Bungoma County, was filed in court in 1994.

Justice Luka Kimaru, on Thursday, issued a restraining order against one of the parties from accessing the disputed land until the case is determined.

The judge said he is concerned that the matter has taken too long to be resolved.

" The case would have been resolved a long time ago only if the parties were willing to resolve the matter in good faith," Justice Kimaru said.

"This is a protracted dispute which should have been resolved a long time ago if the parties acted in good faith and without undue delay in the prosecution of their respective cases. As it is, the dispute has been festering in the law courts for nearly thirty years with no end in sight,” the judge stated in his ruling following a miscellaneous application that had been tabled before him.

Justice Kimaru noted the original litigants have since died, leaving their successors with the burden of carrying on with the litigation torch. He said there is a need to resolve the dispute once and for all.

The case was first filed by Beatrice Mwangusi against Andrew Sabiri. Sabiri is a son of Peter Sabiri who sold the land to Mwangusi.

The court noted that Mwangusi bought the land from Peter in 1976. The sale transaction and transfer were executed in 1996. Mwangusi was given her title deed and took occupation and developed the parcel of land.

The court documents show that Peter died in April 1982. Twelve years later, in 1994, Peter's son Andrew moved to the principal magistrate’s court at Kitale seeking to be granted letters of administration by intestate in respect of the estate of his father.

Among the properties of the deceased, Andrew listed the suit land leading to the deregistration of Mwangusi as the owner.

“From the proceedings of the court, it was clear that Andrew did not disclose to the court that the parcel of land had already been sold and transferred to Beatrice. On October 7, 1997, Andrew sought, and was granted orders, exparte, deregistering Beatrice as the owner of the suit parcel of land and instead directed that Andrew be registered as the administrator of the estate of his father,” the court noted.

Following the lower court's move, Mwangusi petitioned the High Court, in 1998, which ordered that the case be transferred to the High Court for hearing and final disposal. The High Court noted that the principal magistrate’s court did not have jurisdiction to hear the matter.

But since the lower court’s order was still valid, Andrew proceeded to the Lands Registry and had himself registered as the owner of the suit property.

Justice Hillary Chemitei would later, on December 11, 2020, set aside the order directing that Mwangusi be deregistered as the owner of the suit land. Justice Chemitei further directed that Beatrice's name be restored as the owner of the same.

Mwangusi died in January 2013. Her daughter Diana Kavedza, having obtained letters of administration to administer her estate, took over the case.

The ruling further states that more twists and turns to the matter lie ahead after the death of Andrew in December 2014.

In 2016, Andrew’s son, John Sabiri then filed a succession case before a court in Bungoma seeking to administer the estate of his late father. He went on to list the suit parcel as among his late father's assets.

“Again, like his father before him, he listed the parcel of land now renamed as Kimilili/Kamokoiwa/424 as an asset of the estate of the deceased. Again, the petitioner (John) did not disclose to the said court that the issue regarding who is entitled to the suit parcel of land had not been determined by the High Court since the suit was pending determination before this court,” the court papers read.

John obtained a certificate of confirmation of grant indicating he and his siblings were entitled to inherit the suit land.

However, instead of indicating the suit property consists of 15.5 acres (6.2 Hectares), he indicated the acreage to be 6.2 acres. Kavedza then became aware of the proceedings and moved the court to grant the estate interim orders pending the hearing and determination of the succession dispute.

Justice Kimaru has now directed that the various cases filed in court touching the same land be consolidated, heard, and dispensed at the same time.

The judge also issued the restraining order against John, his agents, servants, or family members from entering the land or interfering in any way with the same pending the hearing and determination of the dispute.

He further directed that the dispute be fixed for hearing in October so that the case can be heard and determined.

“This court, upon reading the proceedings of the various files that touch on the land in dispute, formed the view that the only way the litigation regarding who is entitled to the suit parcel of land is to be determined, is to put the parties in a path that will lead to the resolution of the dispute once and for all,” Justice Kimaru said.