Muslim University project at stake as late Senator Haji loses multi-million land case

The late former Garissa senator, Mohamed Yusuf Haji. [File, Standard]

The family of the late former Garissa senator, Mohamed Yusuf Haji, has lost a protracted case over the ownership of an 84-acre land in Kisauni's Utange area of Mombasa to squatters. 

The prime land hugging the Mtwapa Creek on one side is the site for a stalled multi-million-shilling university project. The squatters moved to court on the grounds of adverse possession.

In the case filed on June 27, 2013, Kazungu Moli Chogo, Changawa Moli Chogo, Shaban Bakari Moli, Sammy Keah Moli, Kadzitu Moli Chogo, Ramadhan Randu Moli, and Mwenda Kahindi Moli sought to be registered as owners of the land on grounds of adverse possession, stating that it was their ancestral land.

The Chogo family sued Perihan Torun, Cemalettin Torun, Feisal Sherman, Amir Swaleh, African University Trust of Kenya (AUTK), Mr. Mohamed Yusuf Haji, Zayed Bin Sultan Al Nahyan, and the Charitable & Humanitarian Foundation. AUTK is the body that was building the university.

In a landmark 109-page judgement made on June 27 this year, Justice Lucas Naikuni ruled that the applicants be registered as joint proprietors of the land by the doctrine of adverse possession after proving that they had continuously occupied the land for the last 40 years.

Justice Naikuni of the Environment and Land Court declared that the suit property MN/1/5141 CR 29112 be registered in the names of the family members of the late Moli Chogo.

Chogo died in 1993 and was buried on the disputed land. The verdict puts the future of the multi-million shilling Mombasa Muslim University in limbo.

The court revokes the title following a 12-year protracted court battle with the family of Moli Chogo that resided on the land in question for 40 years.

Justice Naikuni declared that the certificate of title, which was registered under Zayed Bin Sultan Al Nahyan following his purchase of the land from former Garissa senator Mr. Haji, is extinguished due to the doctrine of adverse possession.

Zayed Bin Sultan Al Nahyan is the sponsor of the Charitable & Humanitarian Foundation.

He directed the Land Registrar to revoke the certificate of title and rectify the entry in favour of the Chogo family members.

“That a declaration that the certificate of title to all that suit property known as MN/1/5141 CR 29112 situated in the Utange area of Kisauni subcounty of the county of Mombasa registered in the names of the 7th defendant (Zayed Bin Sultan Al Nahyan) stands extinguished by the doctrine of land adverse possession,” Justice Naikuni declared.

He, however, allowed the Chogo family and AUTK 90 days to consider entering into an amicable out-of-court solution of finalising the establishment of the Muslim University for the benefit of the public and the Muslim community in the Coast region. The defendants were ordered to pay the cost of the suit.

Justice Naikuni noted that the applicants satisfied the requirements to be declared in adverse possession, as they demonstrated to have been in actual possession of the land for 12 years, as required by section 38 of the Limitation of Action Act, Chapter 22.

The judge noted that there was adequate possession in continuity and in publicity and that it was adverse to the registered owner.

“That the suit by the plaintiffs/applicants as per the filed originating summons dated June 27, 2013, filed on the same day, succeeds in its entirety and is hereby allowed with costs,” he stated.

Mr. Haji, who died in February 2021, allegedly acquired the land in 1996 when he served as Coast provincial commissioner and sold it for the construction of the Mombasa Islamic University under AUTK.

The judgement came at a time when AUTK had put up several multi-story buildings for the university after the land was acquired on a 60-year lease agreement with the original owner, leading to uncertainty about the investment.

According to court documents, Zayed Bin Sultan Al Nahyan bought the land from Mr. Haji for Sh4,810,000 on April 30, 2002.

Mr. Haji allegedly failed to disclose to the purchaser that the land was occupied by the Chogo family.

He allegedly attempted to allocate the family five acres so as to retain 79 acres for the university project, but the deal failed, and the family did not vacate the land, leading to more than 10 years of legal battles.

Court papers indicate that on February 7, 2019, the National Land Commission (NLC) committee on historical land injustices made a decision in favour of the applicants after Mr. Haji failed to defend his right to the land.

The NLC determined that Mr. Haji had unlawfully acquired the title to the land, and therefore, it should be returned to the applicants.

The first applicant, Mr. Kazungu Moli, stated that all applicants were children of Mzee Moli Chogo, who was buried on the land when he died in 1993.

He stated that family members have been living on the land and are carrying out farming activities, including planting cassava, coconut, mango, and cashew nuts and rearing livestock.

He told the court that in 2008, they learnt that the land had been registered in the name of Mr. Haji and later heard that it had been secretly transferred to Zayed Bin Sultan Al Nahyan Charitable & Humanitarian Foundation and then leased to AUTK while his family was in full and uninterrupted occupation.

He said the respondents later threatened them with eviction and constructed a perimeter wall. The family members stated that Mr. Haji, during his tenure as Coast Provincial Commissioner, proposed to give them five acres of land while retaining 79 acres for himself; however, this arrangement ultimately fell through.

Mr. Kadzitu Moli told the court that his father was buried on the disputed land when he died in 1993, and the family has continued to reside there.

Another witness, Ms. Mariam Ibrahim Karisa, said she was born in 1950 in the disputed area and left after marriage but never abandoned her proprietary interest.