A prime parcel of land in Syokimau is at the heart of a puzzling dispute in which the seller “came back to life” two years after she died to subdivide and transfer ownership of the property.
Justina Mueni died on August 7, 2005, but, according to the records at the Ministry of Lands, on July 28, 2007, she sold her land to Exotic Home Properties Ltd, which means by the time of signing the transfer of ownership, she had passed away.
This was the very piece of land that she had bequeathed to her son-in-law, Mr Constantino Mutua. He says that, on February 6, 1992, he entered into a land sale agreement between himself and his mother-in-law. Everything was on course until suddenly Ms Mueni fell sick and died.
He approached his father-in-law Joseph Kalani Mutuku, who has also died, and requested him to obtain relevant letters of administration and initiate the transfer of the land to him.
However, the father-in-law appeared reluctant to obtain the letters of administration in order to enable him to finalise a transaction he had started with his deceased wife.
“In view of the above development, I approached ... Kahari and Kiai Advocates, who advised me to place an absolute caveat on the plot, which I did,” he narrated.
In 2005, he was transferred from Nairobi to Kisumu by which time, there was one unfinished house on his plot. In 2009, he visited his plot with plans to finish the construction of his house and embark on other projects. To his surprise, a stranger had already bought and finished building his house and there were also several other structures standing within his plot.
“Upon conducting a search through my lawyers, it was established that a lawyer [Ms Kivuva Sarah Mbithe] had purportedly acted on my instructions and applied for the removal of the caveat,” he said. This paved the way for Ms Mildred Mbuya Muli of Exotic Homes Properties Ltd to buy the property on March 13, 2008, purportedly with the permission of Ms Justina Mueni Kalani who had died on August 7, 2005.
“They purported to have paid Sh4.5 million to the dead person and thereafter the deceased signed a sale agreement then subdivided the plot into 39 other plots,” Mr Mutua narrated.
He reported the matter to the police. Criminal charges were preferred against Exotic Home Properties Ltd and Ms Muli, who at the time was a director at the firm. They were charged with conspiring to defraud Mr Mutua of the 2.023 hectares valued at Sh20,000,000.
The matter would then morph into a series of lawsuits. Seeking the High Court’s leave to have the case thrown out, Ms Muli argued that, by the time she was charged, the police had not recorded her statement. But Justice George Odunga dismissed her application.
“I am not satisfied that this is a proper case in which the court ought to bring the criminal proceedings to a halt,” Odunga ruled.
Ms Muli died two years later. An obituary on the Daily Nation indicated that she died on May 22, 2016. But she was still alive by the time the judgement was issued on May 28, 2015. Ms Mbithe has also been de-registered by the Law Society of Kenya (LSK).
“We wish to confirm that according to our records, the above-named advocate (Kivuva Sarah Mbithe of registration P105/1698/87) was struck off the roll of advocates in disciplinary commission causes number 161/2007 and 80/2008. The advocate is yet to be reinstated in the roll of advocates,” LSK says in a letter dated Feb 2015.
The Director of Criminal Investigations wrote to the Director of Public Prosecutions on July 19, 2020, recommending that Mr Mutua should pursue his claim through a civil case.
“I do not find any evidence to charge D3 (James Wambua Muli) and D4 in a court of law. In the circumstances, I recommend that DI (Mr Mutua) seeks civil redress ... and that the file be closed. No further action,” the letter reads.
