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Unfinished business haunts two families in land dispute

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Maj-Gen Joseph Musyimi Ndolo in an undated photo with his wife at the Officers’ Mess, Army Headquarters, Nairobi. His death in a crash in 1984 kicked off a convoluted fight over his 9,000-acre Mwani Ranch in Sultan Hamud

The car crash that killed Kenya’s first post-independence major-general, Joseph Musyimi Ndolo, in 1984 not only widowed his three wives, but also kicked off a convoluted fight over his 9,000-acre Mwani Ranch in Sultan Hamud.

An 800-acre portion of the land is now at the heart of a vicious court battle pitting Mr Ndolo’s third wife Elizabeth Kamene against several individuals including Court of Appeal judge Daniel Musinga, senior lawyer Muema Kitulu and retired civil servant Emily Gatuguta.

DISCLOSED

At the time of his death, Mr Ndolo was negotiating a deal with one of his friends — Josiah Salvin Kaumbulu — who would also die in a car crash four years later. Mr Kaumbulu wanted to buy a portion of the former general’s Mwani Ranch measuring 3,000 acres. But Mr Ndolo’s death came before the sale could be completed and a court bid by Mr Kaumbulu to have the land registered in his name flopped.

Part of the land Mr Kaumbulu intended to acquire, measuring 800 acres, is now at the centre of the ownership battle.

Justice Musinga sits on 52 acres, while Mr Kitulu has occupied a 20-acre parcel. The size of land Ms Gatuguta occupies has not been disclosed in the court documents.

SECURITY

The three are among a number of people who say they bought land from Mr Kaumbulu’s son, Mr Jerome Mwanthi, who assured them that his father bought the property before Mr Ndolo died.

When Mr Ndolo died, his family was unable to agree on how to divide his wealth and one of his sons, Mr George Matata, moved to court seeking to have all widows given a share.

The succession battle started in 1985 and ended 1996 when the Court of Appeal ruled that his third wife, who was already living on Mwani Ranch, should get a bigger portion of the wealth. Ms Kamene got 40 per cent of the ranch, while his two co-wives — Rose and Alice — got 30 per cent each.

The land had been used as security for a loan from the Agricultural Finance Corporation. A consent was reached to auction 1,000 acres to offset the loan, leaving 8,000 acres for division among the Ndolos. Elizabeth got 3,200 acres while Rose and Alice each got 2,400 acres.

AGREEMENT

But as the family was seeking a resolution in court, effects of the incomplete land sale deal between Mr Ndolo and Mr Kaumbulu were unfolding.

After Mr Kaumbulu died in 1989, Mr Mwanthi began selling pieces of the land his father intended to acquire. Mr Kaumbulu had also taken the court route before his death, seeking to have the 3,000 acres transferred to him.

But the Ndolo family, through Mr Kitulu, opposed the move successfully and in 1991 the High Court threw out the Kaumbulus’ claim after the two warring families reached an agreement.

The Kaumbulus were represented by former Chief Justice Willy Mutunga.

TITLE DEED

By 1989, Mr Kaumbulu had agreed to sell part of the disputed 3,000 acres of land to Ms Gatuguta. After his death, his son took over the deal and received money.

Two years later Justice Musinga, then a lawyer, entered the fray. When examined in court by Ms Kamene’s lawyer Paul Onduso, the judge and Mr Kitulu both said they knew the title deed was not in Mr Kaumbulu’s name.

“I met Jerome in 1991 or thereabout. He represented to me that he was a beneficial owner of the land. I made investigations though not in a detailed manner since I had met Kaumbulu through Muema Kitulu who is an experienced advocate. The agreement between Jerome and I was prepared by myself,” Justice Musinga testified in the Makueni lands court.

OFFICIAL SEARCH

Justice Musinga paid Sh300,000 to Mr Mwanthi for 20 acres. The judge later purchased an additional 30 acres from his uncle, Mr Sammy Mutisya.

“At that time I did not conduct an official search. I was not aware of the dispute between the Ndolos and the Kaumbulus. I got to know of it while I was in occupation,” the judge added.

A year later Mr Mwanthi sold another 20 acres time to Mr Kitulu, who said he knew of the Ndolo family dispute and that he bought the land knowing the Kaumbulus had an interest in the property.

“I did not conduct any survey in 1992 at the time of taking possession. The beacons were pointed out by Jerome. He is not a surveyor. I am not a surveyor. The agreement we entered into was drawn by my firm. Jerome did not have a title to the land at the time I entered into the land. I knew he had an interest over the defendant’s land,” Mr Kitulu said in court.

ADVERSE POSSESSION

Mr Mwanthi has since relocated to the US. “I confronted Jerome to recover my money in 1994. No recoveries have been made to date,” Mr Kitulu said.

The Ndolos insist that all occupants should pay them for the land at current market rates, and pursue Mr Mwanthi for any losses they suffered by paying him for the property. They all insist on being given title deeds for the land, having occupied it for over 12 years uninterrupted.

Today, there are over 100 families on the disputed land, all claiming adverse possession.

Ms Kamene said the occupants have always known that she owns the land, and they even attended several meetings with her sons Steve and Andrew to regularise their stay. But the occupants insisted that they only attended the 2006 meetings to demand title deeds from the Ndolos.

RECOVERY SUIT

High Court judge John Mutungi in 2015 dismissed the Ndolo suit, arguing that the only exception that can be made to file a land recovery suit outside the 12 year window, is the discovery of new evidence.

In another judgment, Justice Charles Mbogo ruled that they have lived on the land for over 12 years uninterrupted, and ordered Ms Kamene to sign the property off to them.

But the widow has taken the battle to the Court of Appeal. The appeal is yet to be heard.

 

-www.nation.co.ke

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