Chief Justice orders re-hearing of land dispute in Homa Bay

By DANN OKOTHThe Chief Justice has ordered the re-hearing of a long running land dispute case in the High Court in a controversial development that flies in the face of previous rulings on the matter and potentially embarrasses a chain of court decisions.The CJ, through the office of the Ombudsman, advised Paul Obunga to appeal a case that was ruled in his disfavour, effectively annulling an earlier decision by the High Court to throw the matter out.Mr Paul Obunga, in green shirt, during the interview.And the development has again exposed corruption in the corridors of justice after it emerged a lawyer representing Obunga pocketed over Sh100,000 for which he did not deliver any services."We acknowledge receipt of your letter dated September 30, 2011, on the above subject matter. We wish to inform you that, you have the right of appeal if you are aggrieved by the courts," read the letter dated December 1, last year. Obunga had written to the CJ seeking permission to stay the execution of a judgement delivered at the High Court in Kisii in 2010 that stripped him of ownership of a 105.40 hectares ranchland in Dhiwa in Homa Bay County.Disciplinary actionHe had also sought disciplinary action on elements of corruption at the district’s lands adjudication and settlement unit in Homa Bay after it went ahead to arbitrarily sub-divide the parcel of land into three parts when an appeal against such a sub-division lodged at the Ministry of Lands between 1993 and 1995 had not been heard and determined.However, it is the agony and financial loss the protracted case subjected the litigant to that stands out even as a final settlement to matter appears ever more distant.Clan intrigues and rivalry, intellectual mischief and pure greed played out in the decades long legal tussle as Kobunga Ranching Group led by Obunga fought it out with Jokaete and Jokodhul Ranching Group.But it would appear that Jokaete and Jokadhul Ranching group, spearheaded by a group of distant clan members used their financial and intellectual might to wrestle the land from the more legitimate but not so learned Obunga.Sometime in 1987, Obunga’s father, Joshua Guga, had gone to the Lands Appeals Board at the ministry and was given an absolute map for the parcel No475 (being the land in dispute) – meaning no sub-division, or transfer would happen without a court order.This is after the clan members apparently applied pressure on him to sub-divide the land and dish it out between the various clan members.However, this would mark the beginning of a long legal tussle that would ravage Obunga both physically and financially. Ideally, the larger clan of Kobunga consists of Kodhul, Kaete, Matunga and Odugi clans from which seven sons emerged. But according to Obunga the land in question belonged to his late father – giving him the legitimacy over its administration.Matters came to head some time in 2000 when four sons from the four clans went to the district lands committee and sought the sub-division of the land among the seven sons."We were shocked because we only learnt later the land had been sub-divided into three parts and titles issued to Jokaete and Jokadhul Group," says Obunga."We moved fast and lodged an appeal at the ministry in Homa Bay where we were assured the land had not been sub-divided," he adds.Indeed, in a gazette notice No 5197 dated August 3, 2001, the District Lands Registrar P J Mulingecancelled the allocation.The notice read in part: "Whereas Jokaete Group and Jokodhul Group both of P O Dhiwa in the Republic of Kenya, are registered as proprietors of those pieces of land containing 35.0 and 36.0 hectares or thereabout, known as parcel Nos Kanyamwa/ Kabonyo Kwandika/1940 and 1941, and while an appeal to the minister nullified the ownership of the said land efforts to recover the title deeds and surrender the same to the registrar for cancellation has failed."Title deed"Notice is hereby given that after the expiry of 30 days, the land title deeds issued earlier to the said Jokaete Group and Jokadhul Group, shall be deemed to be cancelled and of no effect."The development jolted Jokobunga into action and they moved and obtained the title deed for the entire 105.40 hectares piece of land in 2001."Shortly after and to our utter dismay we received a letter from the High Court in Kisii ordering us to surrender the title deed as the land in question had been sub-divided," reports Obunga.He says he was intrigued by this development since he did not expect a judicial institution like the High Court to act in this way."I was rather confused because I was being served with a court order yet I had lodged an appeal of adjournment since I could not reach court in good time due to illness and owing to the fact that I received court summons rather late. It was the height of injustice by the justice system," Obunga says."I believe our opponents engineered this scheme to ensure we were not in court when the matter was being dispensed with," Obunga says with a tinge of bitterness in his voice.What would follow was a desperate race against time to appeal the ruling and overturn a verdict that would wipe out all hopes of earning his legitimate heir to his late father’s property and any future for his family."It was like a marathon," he says. "I literally lived at the Attorney-General office as I desperately sought to have him appeal the case in the hope of saving my land," he adds.Court documents show that Obunga, either personally or through his lawyers wrote to the Court of Appeal at least seven times between 2010 and 2011 seeking to be heard by a higher court but in vain.In one of the correspondences, he pleads: "It is therefore my prayer as the immediate respondent from the big Obunga family ranch to whom the land parcel No 475 belonged, that justice is not only done but be seen to be done."He also, severally, pleaded with the Ministry of Lands to intervene in the matter and save his land with little success even though the same ministry had placed a caveat on the land.High Court registryObunga also suspects mischief between his previous lawyer and the registrar at the High Court registry in Kisii as it seems his appeal for adjournment did not reach the registrar in time – or did not reach him at all.At one point, he wrote to the Kenya Anti-Corruption Commission seeking their help in the matter up

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