Retired judge Tom Mbaluto has been allowed to evict his younger sister from a parcel of land in Machakos county after the High Court upheld an earlier decision by a magistrate’s court that the property belonged to the former judicial officer.
Environment and Land Court judge Christine Ochieng ruled that Ms Beatrice Mueni Mbiti, failed to prove that she had purchased the land from her elder brother in 1996, as claimed.
The judge further said her sister could not prove the claim of adverse possession as she did not demonstrate to the satisfaction of the court that she had been in continuous and peaceful occupation of the contested property for a period of 12 years to be entitled to claim it.
“My considered view is that the appellant (Ms Mbiti) was a mere licensee over the land but has now sought to take advantage of the respondent who is her elder brother to take it away,” said the judge.
Ms Mbiti moved to the Environment court after her claim for the land was dismissed by Chief Magistrate Ann Nyoike on April 22, 2021.
The woman admitted that Mr Mbaluto was her elder brother who took care of her from a tender age until adulthood. She took over the three-acre parcel in 1996 after she allegedly bought it from her sibling for Sh90,000.
She claimed that she handed the money to Mr Mbaluto in a white envelope in the presence of his wife and other witnesses and produced a document dated August 3, 1996 written in Kamba language asserting it was the sale agreement.
An English translation of the document stated that she had given her brother Sh90,000 for the three acres at Katheka-Kai in the presence of her mother, Mr Samuel Mweu and her brother Muasya Mbiti.
She faulted the magistrate saying in the absence of proof, the court erred in law and fact in upholding the claim that she was only allowed to settle on the land temporarily.
Ms Mbiti also accused the trial magistrate of misdirecting herself when she accepted Mr Mbaluto’s evidence that his occasional visits to the land in Machakos amounted to interruption of her land possession.
She pleaded with the court to overturn the decision and issue a declaration that she was the sole proprietor of the land.
Ms Mbiti further insisted that her claim was based on the doctrine of constructive trust after entering into a sale agreement, paid the complete purchase price and resided there for a period of over 20 years.
But the retired judge countered her argument saying she took her to the land and allowed her to occupy a quarter-an-acre for the sole purpose of taking care of the whole property on his behalf.
Mr Mabluto denied there was an agreement for sale or consent from the Land Control Board, adding that his sister committed an irregularity, fraud and forgery in the purported agreement.
The judge said it was ironical for Ms Mbiti to claim that she gave her brother money for the purchase of the land, yet he is the one who has been taking care of her including her children and even got her a job as a subordinate staff at the Postal Corporation of Kenya.
“In line with the provisions of the Evidence Act cited, I find that the onus of proving the sale of the land, whether express or implied, laid squarely upon the appellant (Ms Mbiti), which she has failed to discharge to the required standard,” observed justice Ochieng.
