Nyamira man accuses judge in land case of insulting him

Mr David Ong’era who has accused a sitting judge of disparaging him during the hearing of a land dispute he is presiding over. 

Photo credit: Pool.

A retired high school principal in Nyamira County has accused a judge of disparaging him during the hearing of a land case.

Mr David Ong’era has written to Chief Justice Martha Koome and the Judiciary Ombudsperson asking them to investigate the conduct of Environment and Land Court Judge Mugo Kamau for allegedly accusing him of being a fugitive hiding in the United States.

Mr Ong’era is among 15 people sued at the Nyamira Environment and Land Court by Mr Shadrack Makwae, who alleges that they grabbed land belonging to his father.

The suit, which has been pending for the past five years, alleges that Mr Ong’era and the other respondents fraudulently obtained title deeds for various pieces of land they own in Nyamira County.

But Mr Ong’era maintains that he purchased the land in question 36 years ago and obtained a title deed for it.

When the matter came up for hearing, Mr Ong’era, who lives in the US, was allowed to testify via Zoom.

Mr Ong’era claimed that on January 21, he appeared before the Environment and Land Court and gave his evidence and was cross-examined and discharged.

“On January 21, 2022, I was allowed to testify from the USA via Zoom …. I was cross-examined and the court closed my evidence without any problem,” said Mr Ong’era.

He added: “The next hearing was scheduled for February 7, 2022. I logged into the Zoom link and got allowed into the courtroom. The court file was called but the advocate on the other side was late in court.

“[Out of the blue], Justice Kamau accosted my lawyer, demanding to know why he – my lawyer – does not believe that I had grabbed the land in question and I am hiding in America from the law. My lawyer and I were stung by this statement made in [the] form of a question.”

Mr Ong’era continued that “before I could synthesise what the judge was saying and [in] what context, he continued to lambast me and declared that unless I appeared in court in person, he’d write adverse orders and also issue an extradition warrant to the US embassy in Nairobi to have me deported from [the] US in order to face the law in Kenya”.

In a series of correspondence with the Judiciary Ombudsman’s office, Mr Ong’era accused the judge of manipulating records in the case with the ulterior motive of disadvantaging him and his co-respondents.

“After the judge made these outrageous comments, I contacted the Judiciary, and in particular, the Chief Justice and the Judiciary Ombudsman. Head of Secretariat at the Ombudsman Mr Kennedy Bidali expressed outrage to hear what the judge said in an open court. He asked me to apply for the recusal of the judge from the case,” said Mr Ong’era.

Recuse himself

Mr Ong’era lamented that his lawyer had applied to have the judge recuse himself to no avail.

Mr Ong’era alleged that two days before the hearing, Justice Kamau had convened “suo moto” (on his own motion) and dismissed the application in the absence of any of the parties.

Mr Ong’era called the Judiciary and informed Mr Bidali of the new developments.

“Mr Bidali asked me to apply for and send him the court proceedings. My lawyer applied for the proceedings and paid the requisite fees of Sh1,000. However, we have been informed that the judge has kept the file under lock and key,” lamented Mr Ong’era.

Mr Ong’era said he has informed the Judiciary Ombudsman’s office that he is not able to access the court records. He wondered why it’s hard for the Judiciary to call for the file from Nyamira to save him from the stress of fighting with a judge who is hell-bent on condemning him unheard.

Mr Ong’era told the Nation that he was hurt by the judge’s statements because he’s not living in the US because he likes it.

“I have informed the CJ that I came to the US to visit my children but my daughter died mysteriously, leaving behind six children. Soon thereafter, my wife became critically ill [and] she has been going through dialysis in Texas while I take care of the six orphaned grandchildren,” said Mr Ong’era.

Mr Ong’era lamented that though he had bought the land in question legally over 30 years ago and obtained a title deed, he was shocked and disturbed that someone was trying to lay claim to it.

Mr Ong’era has been sued as the first of 15 defendants who are accused by Shadrack Bundi of acquiring his late father’s land and wants the court to order their eviction from the property.

The suit before Justice Kamau has apparently become a contentious matter between the respondents and the judge.

Cases of people laying claim to property in Kisii and Nyamira Counties owned by Kenyans living in the diaspora have been reported in the recent past.

Dr Omari Onyango, a former secretary-general of the Universities Academic Staff Union who lives in Los Angeles, California, is battling to protect his land that was grabbed by someone in Nyanchwa estate in Kisii town.

Mr Peter Makori, a one-time Kenyan journalist, now living in Kansas City, Missouri, was kicked out of his land by another land grabber, who went ahead to forcefully occupy it for five years, and it took a court battle to get it back. He has not been paid the costs and damages arising from his case.

Mr Makori told the Nation recently that land grabbers in Kisii and Nyamira have been emboldened after they discovered that courts acted leniently whenever they are caught stealing other people’s land.

“If the land court orders the culprits to face criminal prosecution besides handing down heavy penalties for engaging in the land grabbing activities, these criminals will fear and respect other people’s property. These people operate on the premise that the courts do not penalise [offenders] enough to deter them from this crime,” said Mr Makori.

In one correspondence between Mr Ong’era and Mr Bidali, which the Nation has seen, the former accuses the judge of acting as if he’s the defense lawyer for the plaintiff in the case.

Land grabbing is one of the most rewarding “investments” for white collar criminals in Kisii and Nyamira.

They target public land and that belonging to people who live overseas. They also grab public servants’ compounds, which they fence off and put up private structures on the land.

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