The National Land Commission (NLC) chairman Muhammad Swazuri is on the spot over a long-running row that could see more than 10,000 families kicked out of a disputed 7,000-acre piece of land in Mariakani, Kilifi County.
Documents seen by the Sunday Nation show that the NLC boss could have overlooked or outright dismissed a forged court order while writing a report that a High Court judge relied on almost entirely to grant the land’s ownership to one family, rendering thousands homeless.
The Directorate of Criminal Investigations (DCI) last week stepped into the dispute with a view to investigating whether the court order, which reverted the land’s ownership to the Tsangwa Ngala Chome clan, was forged.
TITLE A FORGERY
This is after the lawyer representing the Mwabeja, Mwamundu and Mwikai clans, Jackson Muchiri, reported the alleged forgery.
“The above mentioned title (Kilifi/Madzimbani/Mitangoni/B/1) was obtained during the pendency of a court case,” reads Mr Muchiri’s letter to the DCI dated July 27.
“There is clear evidence of forgery. We reported the matter to the police, no action (has been) taken to date,” Mr Muchiri wrote to the DCI. He does not, however, accuse the embattled NLC boss of any wrongdoing, only arguing that the court order used to process the title deed was a forgery.
Mr Muchiri rushed to the DCI after High Court Judge Oscar Angote, of the Environment and Land Court, granted the ownership of the disputed land to the Chomes on July 19 in a ruling that relied almost entirely on a report prepared in 2016 by Prof Swazuri.
“The totality of the evidence before me shows that the suit land has always been owned by the clan of Mumba Chome, and being Trust Land, was held by the (Kilifi) County Government on behalf of that family,” the judge ruled, bringing to an end a dispute that has dragged in courts since 1977.
In that year, Madzao Mangale sued Nyawa Shebi and Mumba Chome (all deceased) over the piece of land in Kitsimani Mitangoni in Mariakani.
At first, a Mombasa court ruled in favour of Mangale, but following a successful appeal, the land was given to the Chomes in 1983.
Ever since, several cases regarding the ownership of the land have been filed by the descendants of the original three antagonists and latter-day claimants, culminating in Justice Angote’s ruling two weeks ago.
In his fight to reopen the case, Mr Muchiri is questioning the authenticity of a court order that the Chomes used to process the title deed and whose author has since disowned it.
The court order was purportedly issued by Mombasa Law Courts deputy registrar, Ms Dorothy Wasike, on October 20, 2014, authorising the issuance of title deed to Mr Ngala Chome, who is the administrator of the estate of the late Mumba Chome.
The same “order” was presented to the then Kilifi district land registrar a week later, on October 26, 2014, and the title deed issued to Mr Chome on the same day.
Ms Wasike later denied ever issuing any court order.
“Kindly, therefore, note that the Hon. Deputy Registrar did not issue any order on August 18, 2014 (when the application for the order was made) and neither does the signature appearing on the alleged extracted orders is hers,” reads a letter of reply from Ms Wasike to Mr Muchiri, who had questioned the authenticity of the order.
Throughout his judgement, Justice Angote never mentioned the contested court order in his 52-page ruling.
“The title deed that was issued to the plaintiff (Mr Chome) was given pursuant to the orders of this court (in 2014),” he said, ignoring the authenticity of the said court order.
Prof Swazuri’s report which Justice Angote said he relied on when he made his judgement dismisses questions regarding the court order’s authenticity and absolves Mr Ngala Chome of any illegality in the acquisition of the title deed.
“The commission did not find any merits in the allegations by the interested parties that the aforementioned court order was authored by Mr Chome,” said Prof Swazuri in his report dated May 9, 2016.
“The commission upon its investigations found that the allegations of fraud relating to the processing and acquisition of the title by Mr Chome are baseless and unfounded,” said Prof Swazuri in his report. However, he did not mention that Ms Wasike had disowned the court order she had purportedly signed in Mombasa in 2014.
And in yet another twist to the dispute, the then Kilifi chief land adjudication officer, Mr Felix Kiteto, swore an affidavit in August 2016 in which he claimed that undue pressure had been put on him to register the land in favour of the Chomes.
“A title deed was eventually issued in favour of the plaintiff (Mr Chome),” he said.
“This was because of the immense pressure exerted upon our office and the office of the Land Registrar by officers from the office of the Attorney General and the office of the DPP.”
In his ruling, Justice Angote ordered the NLC to resettle the people who have been living on the land for many years, either on the same land with the consent of Chome clan, or on another land to be identified by the commission.
In addition, he directed the NLC to compulsorily acquire the land on which public institutions, such as schools and hospitals, have been built on. This could constitute another huge expense to the taxpayer.
Mr Muchiri says he plans to file a stay and an appeal on the judgement, which will add another twist to what ranks as one of the longest, most convoluted land cases in the country.
At one time the case dragged on as the Kenya Electricity Transmission Company Limited (Ketraco) sought to acquire 200 acres for wayleave, but this was contested by the other claimants to the land.
Mr Muchiri argues that investigations into the alleged forgery have been frustrated the police so far.
The lawyer first reported the matter to the Kaloleni district criminal investigations officer Francis Mwikya, on December 9, 2014.
But three months later, on February 9, 2015, Mr Mwikya’s successor J. Alibese abruptly terminated the investigations.
“Refer our letter CID/SEC/POL/4/4/7/VOL 11/68 dated November 9, 2014, by which we notified your office of investigations related to the above captioned matter,” he wrote to the Kilifi district land registrar.
“The purpose of writing this letter is to inform you that we are no longer investigating this matter,” he told the registrar without giving any reasons for ending the investigations.
The lawyer made a follow up on the matter through a letter to the regional criminal investigations officer dated August 11, 2015.
“We would like to know what the outcome of the investigations was as we fear that there is a massive cover up by the investigators trying to protect some individuals from facing the law for the crimes they have obviously committed.”
Again, Mr Muchiri’s letter elicited no response from the investigating authorities.