Kenyan-German woman risks losing land over service charge arrears
The entrance to Mombasa Law Courts.
A Kenyan woman living in Germany risks losing a prime parcel of land on an Indian Ocean cliff if she fails to pay accrued service charges within 90 days.
Ms Melisa Odera, who is building a house on the land she purchased from Keringet Estates Ltd, will also be required to continue paying the Sh23,000 monthly service charge.
Justice Sila Munyao of the Environment and Land Court also directed Ms Odera to complete the house within a year.
If Ms Odera defaults on the orders, the court ruled, Keringet Estates will be free to exercise its right of forfeiture and take possession of the property on the South Coast.
Justice Munyao also ruled that in the event of a default, Keringet Estates would pay the plaintiff at least the forced sale value (amount of money received during an unplanned sale) of the premises.
Justice Munyao noted that Ms Odera had invested heavily in the land but was not paying the service charge and had breached clauses in an agreement requiring her to develop it.
“I personally have little sympathy for persons who consume communal services but do not wish to pull their weight in ensuring that the expenses are adequately covered,” he said.
The court also noted that the agreement did not say that the service charge should start after the plaintiff had completed building the house.
“Nowhere in this sublease agreement does it stipulate that service expenses would only be payable after the completion of the house that Ms Odera and Dr Gaeckle (her ex-husband) had commenced development,” Justice Munyao said.
Ms Odera had sued Keringet Estates seeking a declaration that she is the legal, beneficial and registered owner of the land.
She also sought an injunction restraining the defendant from blocking her access to the land.
Under a May 3, 2011 agreement, the court heard, Keringet Estates subleased to Ms Odera and her then husband Dr Harald Gaeckle a one-acre parcel of land.
Ms Odera said in her court papers that the land was purchased for Sh15 million and the couple was to build a house on it.
The couple entered into another agreement with Keringet Estates under which the company would put up a house for them for Sh15 million, documents show.
Between 2012 and 2013 their marriage ‘hit the rocks’, leading to a divorce in 2015.
Under the terms of the divorce settlement, the court heard, Ms Odera would keep the land, and Dr Gaeckle transferred to her his share in the sublease.
Before the divorce settlement, the couple had received demands from Keringet Estates for payment of 50 percent of the outstanding amount and for the service charge.
Ms Odera contended that if the charges claimed by the defendant were recoverable, they ought to be recovered through ordinary civil proceedings as a debt and not in forfeiture or cancellation of the lease.
Keringet Estate Ltd denied that it wished to remove Ms Odera from the land and said it had a contractual relationship governed by the sublease.
The company also argued that it was Dr Gaeckle who instructed it to build a maisonette on the property and partly paid for the construction.
It said that he stopped remitting funds for construction when he started having marital problems with Ms Odera, adding that she had made no payments for construction.
The company admitted sending demands for payment to Ms Odera and an email declaring that the sublease had been forfeited.
