Legal maze: Two judges, 2 verdicts, and family's struggle for a home

 

Mombasa Environment and Lands Judge Charles Yano (3rd left) takes notes during a sitting at the club course in an ongoing hearing case involving the alleged grabbing of part of the courses by a private developer. [File, Standard]

When Benson Mbogoh bought land in Mombasa in 1977, little did he know that he would leave his family fighting for the property.

Mbogoh and the seller Habib Abdallah died. They cannot tell the tale of how one bought and sold to the other.

But the family of the late Mbogoh is at risk of being rendered homeless and the grave sites of their grandparents desecrated after invasion of the property by persons claiming ownership of the disputed property.

The story of the land in Maweni, Utange, Mombasa, estimated to be around 11 acres can only be told by Mbogoh’s descendants who are now at crossroads and mystified by two conflicting judgments by the same court delivered by two judges on the same property.

On May 12, 2020, Justice Ann Omollo agreed that Mbogoh had legitimate interest on the contested property.

She directed that the persons who had invaded the property should leave.

Justice Omollo ordered Bamburi police officers to offer Mbogoh’s family protection and ensure that no one invaded the property.

Two months later, on July 6, 2020 Justice Charles Yano issued an adverse possession order to 66 persons who had sued Abdallah over the same property.

It was alleged that they lived on the property from 2015.

The group included Bidii Juma, Phileria Kanzolo and Karisa Lai who were listed as the first, second and third plaintiff.

Nevertheless, Mbogoh’s family alerted the Environment and Lands Court of the conflicting verdicts.

The family argued there was deliberate failure by Bidii and others to join them as parties in the case.

Further they argued that Bidii had failed to tell the court that the person they sued as the owner, Abdallah, died a long time ago. And as such, could not respond or oppose the case.

It also raised issue with having same parties and same lawyer appearing in both cases without telling the court that there was an existing legal battle and a judgment on the same issue. 

The court heard that Mbogoh’s family became aware of the second judgment when they went to enforce Justice Omollo’s orders.

Bidii and the others defended their case claiming that the property was already subdivided into two and they were claiming one part only.

They asserted that they were ready to excise the part and have it registered under their names.

They argued that they too had a judgment in their favour and therefore the court could not re-open the case. 

According to them, Abdallah was the owner of the contested land.

However, Justice Nelly Matheka washed her hands on January 25, 2024, saying that the court’s duty or authority had come to an end when it delivered its judgment.

INVASION

In the initial case filed on September 21, 2015, Mbogoh alongside Fraser Utanje and Rajab Katumbi had sued 13 persons including Madonga Kenga, Kassim Nduio and Bidii.

They asked the court to kick out the invaders on their property on which they had lived for the last 54 years.

The court heard that their late father, Ali Karisa Makoko, settled on the property in the 1940s and they had lived peacefully for over 54 years, buried their family members, farmed and developed the land.

However, on September 7, 2015, a group invaded the property, cut down trees, subdivided the land and constructed temporary shelters.

The three argued that Abdallah in 1977 agreed to subdivide the land into two and transfer the disputed land for Sh25,000 to the late Mbogoh alongside his brothers.

An initial deposit of Sh10,000 was paid to Abdulla for the land in dispute. The balance was payable upon subdivision and on the issuance of titles. Unfortunately, Abdallah died.

His son Hussein Jan Mohamed who was assisting his father in the transaction took over but also died before finalising the transaction.

The court heard that the group that came in 2015 sold the parcels of land to third parties. The cost of an eighth of an acre was Sh6,000.

The 13 denied the claims and urged Justice Omollo to dismiss the case.

Mbogoh and Katumbi testified in favor of the case. They argued that Bidii and others invaded the land on August 2015.

They also argued that the group had no evidence to claim ownership of the property.

Bidii was the star witness in the case.

He claimed that he was born on the contested property in 1983 and he knew that, the plot belonged to Habib Abdalla. He claimed that his father was one of the laborers on Habib’s farm.

Bidii testified that they lived peacefully with the Mbogoh family until 2015 when some people came and told them to vacate the land.

He alleged that Abdallah had promised to settle the families living on five acres of the land, while the Mbogoh family occupied 4½ acres and the rest was a swampy area.

He testified further that all the 13 lived with their families for over 50 years and his parents were buried on the boundary of the property.

He was categorical that his mother came from the Mbogoh family as his maternal grandfather was a brother of the Mbogohs. He however was unaware that the Mbogohs had paid for the land.

Bidii however admitted that he had never met Abdallah and that did not have any letter between him and the deceased to counter the claim.

He also did not have proof of his father’s employment as a labourer in the farm.

Bidii also admitted that he did not have any photographs of his parents grave or his house but stated that the living arrangement between the families was based on an oral agreement.

He claimed that they are still facing eviction yet most of them are related.

Mbogoh’s family now holds a judgment that is too thorny to enforce as Bidii and group are also in procession of another judgment decreeing ownership on the same property.