Why Kwale mum won’t rest in peace as fight for her land rages
Waithera died, yet somehow, she was personally sued, served through an advertisement in newspapers and judgment entered against her regarding the property.
What began as a simple agreement between Alice Waithera Mwangi and her worker has turned into a complex dispute that highlights the lengths to which people will go to take ownership of property.
Waithera died, yet somehow, she was personally sued, served through an advertisement in newspapers and judgment entered against her regarding the property.
Waithera’s daughter, Ms Rosabella Muthoni, has taken up the fight to rectify what she alleges to be an illegal acquisition of the family’s 11 hectares of land in Kwale.
Ms Salome Medza Chirima and her children, Kauli Beja and Elijah Ngala sued Waithera nine years after she died and obtained judgment in their favour.
According to Ms Muthoni, her mother acquired the property in 1994 and was registered as the owner the same year.
Waithera had employed one John Karuga as caretaker on the land. Karuga brought in another caretaker as a tenant paying him Sh500 per year.
This second caretaker came with his wife, Ms Chirima, and their children, who lived on the property even after Waithera’s death.
In 2018, Ms Muthoni wanted to lease the land to Kwale International Sugar Company for agricultural purposes.
In 2020, Muthoni and her siblings filed a petition for letters of administration for their deceased mother’s estate through the Public Trustee.
While conducting a search of the suit property in 2021, she said they discovered Ms Chirima and her children had acquired registration of the said land without their knowledge.
“We then instructed our advocate to file a caution against the suit property’s title,” they said.
Ms Chirima and her children had filed a case claiming adverse possession of the property in 2018 and obtained a judgment.
In that case Ms Chirima and her children sought to be registered as the rightful owners, alleging they resided on the land for an extended period of time and that the land in dispute was their ancestral property.
During the case, Ms Chirima and her children applied to be allowed to serve the suit papers through registered post because their efforts to trace Waithera for personal service were unsuccessful.
The court allowed them to serve Waithera through a registered post and advertisement in a newspaper.
Documents, including a copy of the green card, in respect of the suit property showed it was registered in the name of John Mwangi Gakuru in 1992.
This judgment was issued in favour of Ms Chirima and her children in 2020.
Ms Muthoni filed an application with the Environment and Land Court in Mombasa.
She asked for the substitution of her mother's name with hers as the legal representative of the estate and revival of the case for a fair hearing and amendments to the pleadings.
“The judgment entered in favour of the plaintiffs in our absence in 2020 and all the consequential orders and proceedings be set aside,” Ms Muthoni asked Justice Stephen Kibunja.
She argued that because her mother died before the case was filed, she could not have been served with court papers requiring her to defend the case, therefore, Ms Chirima obtained the judgment against a deceased person irregularly.
“The registration of the plaintiff as the proprietors of the 11 hectares of land and the issuing of the title deed for the land thereof was also irregular, unlawful and unprocedural,” she said in court papers.
She lamented that Ms Chirima and her children had used the irregularly obtained judgment to prevent the deceased’s children from accessing the property thereby hindering their enjoyment of the same.
In response, Chirima and her children opposed setting aside the judgment.
In an affidavit, Mr Ngala argued that Ms Muthoni failed to establish any relationship between her and Waithera, adding that the property in dispute is their ancestral land.
“We have lived on this land all our lives and do not know how the deceased acquired its ownership,” he said.
He denied that they were caretakers on the disputed property.
Mr Ngala defended their case saying the deceased had been served through advertisement in September 2018.
“We were registered as proprietors of the suit property through the court order and had not known of the death of the defendant,” he said.
He also alleged that Ms Muthoni failed to disclose the existence of another suit that was pending before a magistrate court in Kwale.
“Ms Muthoni should choose which court she wants the matter to be heard. This application should be dismissed,” he said.
In his judgment, Justice Kibunja agreed with Ms Muthoni that by the time the suit was filed, her mother had been dead for nine years.
The judge further noted that the plaintiffs failed to provide evidence to challenge that presented by Ms Muthoni about the date of death of her mother or to show that her mother was not dead by the time the case was filed.
“In view of the finding that Ms Mwangi had died about nine years before the filing of this suit, it follows that the plaintiff’s originating summons, the proceedings that ensued and the judgment were all against an already dead person who was incapable of being personally served and could not participate in person or through advocate,” said the judge.
The judge agreed that the judgment handing ownership to Ms Chirima and her sons cannot be said to have been regularly obtained and the court has the jurisdiction to set it aside once it is shown that a dead defendant had been sued, allegedly served through advertisement and judgment obtained against her.
Justice Kibunja said the plaintiffs failed to ensure they had sued a proper defendant in their claim and instead sued a dead person.
“Even where a living person is sued and later dies in the cause of the proceedings, such a suit is caught up with the abatement provisions under Order 24 of Civil Procedure Rules if no application to substitute the dead defendant is filed within one year of their death,” said the judge.
The court noted that the plaintiffs should have considered suing Ms Mwangi’s legal representative to stand a chance to obtain orders that confer good title to them.
“A suit against a dead person is indeed a nullity. It is only fair that Ms Muthoni, as the legal representative of the deceased estate, be given an opportunity to defend this suit. That is the only way that the deceased estate will be accorded an opportunity to participate in the proceedings and for the court to decide the case after a merit hearing,” said the judge.
Justice Kibunja substituted the deceased name with that of Ms Muthoni, set aside the judgment in favour of Ms Chirima and her children and directed a rehearing of the case.
The court also declared null and void the registration of the plaintiffs as proprietors of the suit property and ordered the Land Registrar to call for the title documents and to rectify the register of the said land by cancelling all the entries to reinstate ownership thereof to Ms Mwangi.
