Woman sheds tears over delay of justice in Sh8 million land tussle

Magret Kamen Mulwa weeps outside the Mombasa High Court on Wednesday May 23, 2018, after the court gave a far date of September for hearing of her case; she claims a white man has grabbed her land in Diani. [Kelvin Karani, Standard]

A Kenyan woman living in Germany Monday left the Mombasa Courts in tears after her case was adjourned for five months without proceeding.

The woman who is battling to regain back her two hectares of land worth Sh8 million in Diani from Paradise Bay Limited said the dates given by Justice Charles Yano were far and she does not have the resources to keep coming back to Kenya.

"This is stressing me now. I cannot be coming each and every time to Kenya, where will I get the money for air ticket. I was expecting to finish the case today," said Margret Mulwa.

Mulwa who had already booked her flight to Germany could not hide her frustration as she cried in confusion after her lawyer stood her down to get certified copies of receipts of the payment to the land she had bought in 1995.

Her lawyer Lucy Ngigi applied before Justice Charles Yano to have the matter heard on a later date after they produce certified copies of the receipts.

"I cannot proceed with my client unless we are allowed to produce the copies of the receipts. If not I stand down my lawyer until we get certified copies of the receipts," said Ngigi.

Monday Justice Yano had ruled that Mulwa cannot produce copies of the payment receipts which are not certified.

"I decline to allow the production of the copies of the payment receipts. The law in this case requires certified copies to be produced," said Justice Yano.

Mulwa had filed a suit before Justice Yano seeking to stop any development on a parcel of land in Kwale she claims she owns.

Ms Mulwa, who lives in Germany with her husband, Lother Rolf Schaffara, told Justice Yano in her testimony that a European man had invaded the land she bought with her husband in 1995 from Mariam Mwamajeni, who is now deceased.

She said Mwamajeni's daughter Mwanaidi Mtoto sold the land to Paradise Bay even though she knew the property belonged to Mulwa.

"While (I was) in Germany, my farm boy, who lives on the land, told me there was a white man claiming that the land in question was his and wanted to burn down the house he (farm boy) was living in. On doing a search at the land registry, it was discovered that Paradise Bay had bought the land from Mwanaidi Mwinyi Mtoto," said Mulwa, who is a German citizen.

She said Ms Mtoto was present when her mother was selling the land to her.

"I think it is fraud and I don't know how she got the title because everything, including my green card, was in my file at the registry. It is my averment that she sold the land to Paradise Bay within a month of getting the title," Mulwa said in her court papers.

Mulwa said she bought the land for Sh800,000 on January 28, 1997, and was issued with a title deed.

"When we started the purchase process, I visited the land and we measured it and put beacons. There was no one living on the land. The last time we did a search on October 17, 2014, our names reflected on the registry as the owners of the land," said Mulwa.

She said the title deed Mtoto claimed to own was obtained on April 26, 2016, while the one held by Paradise Bay was obtained on May 24, 2016, a month after Mtoto sold the land to them.

She said she had never had any problems with Mtoto regarding the land, neither had she seen any court orders cancelling her title.

Mulwa said no one at the registry notified her of the change or transfer of the title from her name to Mtoto's and later to Paradise Bay.

However, Paradise Bay and Mtoto, through lawyer Clifford Tolo, denied that they acquired the land fraudulently.

Paradise Bay argued it bought the land from Mtoto at Sh8 million after carrying out due diligence.

The firm said it followed the right procedure by applying for a search of the property at the land registry in Kwale, making a consent of the land control board, obtaining a letter of consent, conducting a land evaluation and paying stamp duty and title transfer fees.

Mr Tolo said Mtoto acquired the land after obtaining a grant of administration of the estate in a succession case in a Kwale court.

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