Former judge Said Juma Chitembwe has been accused of presenting forged documents to claim victory on behalf of his client, in a dispute over a 20-acre beachfront land in Kwale that Kanu party leader Gideon Moi has also staked a claim in.
Forgery concerns have been raised in relation to court proceedings, a judgment and correspondence alleged to be between Mombasa, Nairobi and Kwale deputy registrars of the Judiciary.
Last Thursday, Kwale’s Justice Luka Naikuni declined to grant Dr Chitembwe and his client, Hassan Mohamed Mwazecha, orders to occupy the land after poking holes into the authenticity of some of the documents presented to him, including a court order purportedly from the Mombasa High Court.
Justice Luka Naikuni.
Photo credit: Pool
Justice Naikuni held that several inconsistencies in correspondence alleged to be between Mombasa, Nairobi and Kwale courts and the absence of some original documents made it difficult for him to preside over the matter.
The judge ordered that the case be returned to the Mombasa High Court, where it is alleged to have been determined in favour of Mr Mwazecha, for a mention on October 7.
“…However, the documents provided included the plaint, some correspondences, exhibits, handwritten proceedings which the Court has noted bear significant deficiencies as shall be pointed out in depth herein below,” Justice Naikuni said.
“The plaint is replete with repetitive statements, lacking substantive details about the claim, Defendants, or reliefs sought. The letter from Milimani Law Courts contains inconsistent dates (e.g., references to years 2011, 2022, and 2026) and lacks clarity on the procedural steps taken prior to the transfer. These inconsistencies raise questions about the integrity and reliability of the court records,” the judge added.
Justice Naikuni’s orders followed an application by Mr Moi, who has accused Dr Chitembwe of presenting in court forged court proceedings and a judgment indicating that Mr Mwazecha was in 2015 declared the land’s legal owner.
The former Baringo senator said in his affidavit that he has never known of any dispute of the land, and has never hired any lawyer to represent him in the case, despite the disputed record indicating that Mr Moi participated in the matter.
The disputed judgment shows that Mr Moi filed a defence through former Makueni senator Mutula Kilonzo, who died in April, 2013.
Mr Moi sold the land to Sucham Investment Ltd, Green Turtle Ltd and Richard Tunui Koech, who are in occupation of the property. The land is still undeveloped, but is fenced.
Mr Moi says in an affidavit that he instructed lawyers Murgor & Murgor Advocates to take the judgment and court proceedings to an examiner, who found that they were forgeries.
It indicates that the handwritten proceedings were all penned by the same hand, despite the case being purported to have been handled by five judges between 1972 and 2015.
Four of the five judges who handled the disputed proceedings are dead, including Samuel Mukunya, who allegedly delivered the Judgment on December 17, 2015.
A condolence message from the Judiciary, published on its website when Justice Mukunya died, states that he was transferred from Mombasa to Kerugoya in September, 2014 – more than a year before the judgment date.
Only retired Justice Philip Waki is alive, with the disputed record showing that he handled the matter between February and July, 1993. The other judges shown to have handled the case are G.K. Bennet, James Nyarangi and Samuel Oguk.
Retired Justice Philip Waki.
Photo credit: File | Nation Media Group
Tom Maosa, a lawyer whom the disputed proceedings show represented Mr Mwazecha until the 2015 judgment, is also dead.
The Nation has also established that the Judiciary’s portal also indicates that on December 17, 2015, there was only two hearings before the Mombasa lands court on the day – hearing of a case pitting Beja Mueno against Nyawa Nyale, and a judgment in a case between Shammim Ferozdin and Akbar Msinga.
The documents before the Kwale court indicated that Mohamed Omari Mwazecha, who later died and was replaced in the case by Hassan Mohamed Mwazecha, filed a case in 1972 seeking to be declared the land’s legitimate owner.
The list of respondents was among the red flags that Justice Naikuni raised. The National Land Commission was listed as one of the respondents, despite only coming into existence 40 years after the case was allegedly filed.
As there was no document filed to show that the case had been amended to change the list of respondents, Justice Naikuni raised doubts about the authenticity of the documents before him.
“Based on these fundamental facts, it would be rather difficult to appreciate how a non – existence statutory body would be a party to a suit that was instituted in the year 1972 unless it was through an amendment under the provisions of Order 8 Rules 3, 4 and 5 of the Civil Procedure Rule, 2010. 30,” the judge said.
“If all these glaring anomalies were as a result of typographical, arithmetical or clerical errors, the available legal remedy would have been to have them corrected by Court upon being moved by the parties through the provision of Sections 99 and 100 of the Civil Procedure Act, Cap. 21. However, for one reason or the other this never took place,” Justice Naikuni added.
Additionally, the judge questioned a letter purportedly from the Milimani High Court in Nairobi, which he said was not on a proper Judiciary letterhead, and had no court of arms seal as is with other official Judiciary documents.
Another letter from the Mombasa court, he added, had a signature but no name of the deputy registrar who wrote to the effect that the file be transferred to Kwale.
The Mombasa letter was dated February 7, 2017 but it was received on April 24, 2025.
“Why would it take it eight (8) years for a letter to reach Kwale a distance of only 40 kilometres from Mombasa. Why would it take such an inordinate duration to be remitted? Secondly, the said order was reportedly extracted in year 2017, yet the case was only forwarded to the ELC at Kwale in or after the year 2021, when the Kwale ELC was established. This delay of approximately seven years is not only inordinate, unreasonable but also unexplained in the given circumstances. Such a significant lapse raises questions about the procedural regularity of the transfer and whether the High Court’s directive in 2015 was diligently acted upon,” Justice Naikuni added.
Mr Moi in his application argues that he only learned of the case on July 17, 2025 when he received a mention notice.
The mention notice was erroneously sent to Kilonzo & Company Advocates, who then forwarded it to Archer & Wilcock Advocates who have handled some of the Moi family legal matters.
Archer & Wilcock Advocates then informed Mr Moi, who then instructed Philip Murgor to represent him in the case.
Mr Moi wants the court to order the Directorate of Criminal Investigations (DCI) and Ethics and Anti-Corruption Commission (EACC) to investigate the alleged forgery of the court proceedings and for prosecution of anyone found to have aided the move.
“Having determined that the handwritten proceedings and judgment in this matter are forgeries, the plaintiff in continued perpetration of the said fraud, through Said Chitembwe-Advocate through the firm of Osundwa & Company is attempting to commence execution of the purported decree emanating from forged record of the proceedings and forged judgment dated 17th December 2015…,” Mr Moi said in his affidavit.
Dr Chitembwe had told Justice Naikuni that the case was concluded in 2015, and an order extracted from Mombasa to the effect that the Kwale court issue a decree – the legal document that allows for execution of a court’s decision.
