What you need to know:
- The bench upheld a Busia High Court ruling after the appellant failed to convince the judges of any irregularities.
- The High Court verdict was a follow-up of the decision made at the magistrate’s court in Busia.
- The land was sold to offset funeral expenses for his late brother.
A family in Funyula, Busia County, is battling to recover land they claim was grabbed, leaving them landless.
Mr Zablon Baraza Pamba, a resident of Sibale village, has returned to the High Court in Busia to reclaim the parcel that his father Pamba Amila lost to Mr John Kutolo.
The Amilas’ last attempt to recover the land was dismissed by the appellate court in Kisumu on February 5, 2015.
The case on parcel number Samia/Luanda-Mudoma/1537 was thrown out by judges David Maraga, now Chief Justice, Festus Azangalala and Sankale ole Kantai.
The bench upheld a Busia High Court ruling after the appellant failed to convince the judges of any irregularities.
The High Court verdict was a follow-up of the decision made at the magistrate’s court in Busia.
In his appeal, Mr Amila had sued Mr Kutolo seeking three main reliefs — rectification of register in respect to the parcel of land, deletion of the name of the respondent and a permanent injunction retraining him from using the land.
Mr Amila alleged that Mr Kutolo had transferred to himself the entire three-and-a-quarter-acre parcel of land yet he had only been sold an acre.
He claimed Mr Kutolo fraudulently acquired the land by indicating to the Land Registrar that he had purchased the entire parcel.
However, the respondent filed a defence to the suit and claimed that he was properly registered as the owner of the land after he purchased it and the same transferred to him.
He denied fraudulently obtaining the registration of the suit parcel.
The case was dismissed with costs after suffering a similar fate at the magistrate’s court and the High Court.
But, Mr Pamba, Mr Amila’s son, says there still exists a number of inconsistencies despite the rulings of the three courts.
He told the Nation that after perusing all available documents, there are discrepancies that have emerged.
The new discoveries prompted him to file another case at the Busia Environment and Land Court on April 3, 2019 in his last bid to reclaim their property.
Mr Kutolo and Mr Amila are defendants in the suit.
In his affidavit, he said that he did an official search at the Lands Office and discovered that the whole parcel had been transferred to the purchaser contrary to an earlier agreement.
“I further processed a Green Card for the above parcel of land and found that Mr Kutolo had acquired a title deed for the parcel in the year 1997 without doing succession process and even the records show that my father was registered as owner in 1996,” said Pamba.
He argues that his father is illiterate and as such did not know about the transfer of the title from one person to another.
“I have the original title deed issued to my deceased uncle Oundo Ngweno Namulakha in 1988. But I was shocked by the dealings on the parcel and therefore made efforts to get minutes from Funyula Land Board transaction register to compare with the consent which was approved on April 2, 1997.”
The consent was, however, rejected on April 13, 1997 for the simple reason that the entire family had not been involved.
Mr Pamba’s evidence documents include a copy of limited grant of letters of administration, consent letter and transfer of land dated April 25, 1997.
His remarks were corroborated by Mr Alex Ndenyi, the then assistant chief of Mudoma Sub-Location who appeared before the magistrate’s court during cross-examination of witnesses.
While he admitted that Mr Amila sold an acre of land for Sh50,000 in 1996, he revealed that he did not witness any succession cause.
“I have never signed any documents to facilitate succession cause. On February 13, 2007, I got a report from Mr Amila that Mr Kutolo had interfered with the boundary,” he said.
He further agreed that only a portion of the shamba, which belonged to Me Amila’s brother, Mr Namulakha, was sold after he died in 1994.
The land was sold to offset funeral expenses for his late brother.
In one of his latest affidavits signed on May 15, 2019, Mr Kutolo indicated that he was subsequently registered as the sole absolute proprietor of the land on April 27, 1997.