Knowing Your Community Land Rights

Opinion Blog

Recognition, Protection and Registration of Community Land Rights

Community land is land which vests in and is held by communities identified on the basis of ethnicity, culture or similar community of interest under the tenure systems of either; (a) customary (b) freehold (c) leasehold (d) or such other tenure system recognized under a written law.

Every person has the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya, in accordance with Article 40 of the Kenyan Constitution.

Customary land rights, including those of community land, have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transfer for example, subject to Article 40 (3) of the Constitution and the Land Act, no interest in, or right over community land may be compulsorily acquired by the State except in accordance with the law, for a public purpose, and upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement.

To register a community land, the Cabinet Secretary of Lands, in consultation with the respective county governments, develop and publish in the Gazette a comprehensive adjudication programme to ensure that the process of documenting, mapping and developing of the inventory of community land is transparent, cost effective and participatory with the members of the community.

The person responsible for the registration of community land is the Community Land Registrar.

The process of registering community land involves the Cabinet Secretary of Lands by a notice in the Gazette; appoint an adjudication officer in respect of every community registration unit to facilitate, in consultation with the respective county governments, the recording of community land claims, demarcation of community land and delineation of boundaries. Upon adjudication, the title relating to community land is issued to the registered community by the Community Land Registrar.

Community land maybe held as; communal land; family or clan land; reserve land; and any other category of land recognized under a written law.

Administration and management of community land

A registered community must have a community assembly which shall consist of all adult members of the community. The community assembly shall elect between seven and fifteen members of the community assembly to constitute the community Land Management Committee for the administration and management of the community land.

Any decision of a registered community to dispose of or otherwise alienate community land is binding if it is supported by at least two thirds of the community assembly, while all other decisions of the registered community shall be by a simple majority of the members present in a meeting.

Nature of community land title

Upon registration of a community land, the community is issued with a Certificate of Title which gives the community the absolute ownership of that land together with all rights and privileges attached to the land.

This certificate is considered by courts as factual evidence that the person named as proprietor of the land is the absolute and indefeasible owner

Conversion of community land

A registered community shall, before the conversion of registered community land into either public, private land or any other category of land, seek and obtain approval from two thirds of the community assembly for instance;

  • Community land may be converted to public land by compulsory acquisition; transfer; or surrender.
  • Community land may be converted to private land through transfer; or allocation by the registered community.
  • Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act, 2012 (No. 6 of 2012).
  • Private land may be converted to community land by transfer; surrender; operation of the law in relation to illegally acquired community land; or operation of any other written law.

Special rights and entitlements in the community land

A registered community may upon application and with approval of the members of the community assembly, allocate part of its registered community land to a member or a group of members of the community for exclusive use and occupation for such period as the registered community shall determine.

These occupations may include (a) farming areas; (b) settlement areas; (c) community conservation areas; (d) access and rights of way; (e) cultural and religious sites; (f) urban development; or (g) any other purpose as may be determined by the community, county government or national government for the promotion of public interest.

However, an individual entitlement shall not be superior to community title in any way.

Environment and natural resources management

Natural resources found on community land shall be used and managed sustainably and productively; for the benefit of the whole community including future generations; with transparency and accountability; and on the basis of equitable sharing of accruing benefits among the community members.

Settlement of disputes relating to community land

For purposes of settling disputes and conflicts involving community land, registered communities are encouraged to use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms and internal dispute resolution mechanisms set out in the respective community by-laws.

The methodologies used in dispute resolution over community land include,

  • Mediation
  • Arbitration
  • Judicial proceedings

 

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria

 

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Success Story- Mary Runyangi Muchafu

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Mary Runyangi Muchafu receiving her settlement at Kituo Head office, Nairobi.

Mary Runyangi Muchafu is a middle-aged Kenyan woman who came to Nairobi over a decade in pursuit of gainful employment. Mary is an honest and hardworking Kenyan who worked as a domestic worker in the leafy suburb of Lavington, Nairobi while living in Kawangware. The mother of five (5) was contracted on the 22nd November, 2016 and performed her duties with loyalty and diligence until 6th December, 2017 when her employer; one Mariama Sieh unfairly fired her.

Mary was dismissed in the most unfair manner without any notice being given to her or receiving her terminal dues. Lost and confused on how to handle this most unfair predicament; Mary was contemplating taking her school going children back to their rural home as her prospects of supporting them in her current state looked grim.

Fortunately, when she narrated her story to a friend in the neighbourhood who also works as a security guard in the suburbs of Nairobi; there was a glimmer of hope. The friend happened to have received pro bono legal representation from Kituo Cha Sheria in a similar matter previously.

Mary had worked for the entire duration of her employment without leave including during public holidays and was instead met with threats of dismissal any time she requested a day off. Mary instead toiled in the Mariama household taking care of 4 children until the day she was dismissed and now was presenting her matter to a Kituo legal officer. Once her case was reviewed and deemed meritorious; a demand letter was immediately served to her former employer clearly stating the employer’s unjustified actions in four points- salary in lieu of notice; annual leave; service pay and compensation for unfair termination according to Kenya’s labour laws.

The employer did not respond to the demand within the stipulated time and instead rubbished Mary’s claim with more threats and scare tactics that she’d instead end up paying the employer.

Kituo’s legal officers acting on mandatory instructions to institute legal proceedings from the client were ready to proceed to court and had duly served the employer when through their legal counsel they offered to settle the claim out of Court. The offer being acceptable to our client- Mary Runyangi received a full and final settlement of Ksh. 32,000 in April, 2018.

A very thankful Mary who has since found employment elsewhere was grateful to all Kituo officers who assisted her in her pursuit of justice saying, “Nimesaidika! Asanteni sana”, she said.

RCKM

Kituo Cha Sheria

Success Story- Njoki Nguga

succes-storyKibera Community Justice Center

Serving the most vulnerable persons in the society…

Njoki Nguga, a 67 years old granny from Kibra, Nairobi has a reason to smile after her name got approved as a beneficiary of the Kenyan government’s monthly stipend funds for the elderly.

Njoki, a widow who is staying with two orphaned grandchildren, spends sleepless nights trying to provide for the kids who are all in school. She said for several years she has not benefited from the funds despite her attaining and even surpassing the recommended age (65).  Her National Identification Card had an error, indicating that she was born in 1952 reducing her age by two years by the time she attained 65 years the recommended age for benefiting from older person’s funds, a programme run by the Ministry of Gender, Children and Social Development in Kenya. The ministry had failed to enroll her because of this.

Njoki said she was referred to the Kibera Community Justice Centre by a friend who had once gotten assistance at the justice centre. She approached the justice center seeking legal advice regarding her problem. She specifically wanted the paralegals assist her correct the error that has made her miss the monthly stipend that she ought to be getting.

“I had made several attempts to government offices including the DC’s and the Chief’s offices but my efforts bore no fruits. I therefore decided to seek for assistance from the justice center as advised by a friend”, said Njoki.

Ezekiel Njenga, certified Paralegal at Kibera Community Justice Center intervened. He advised the client to first go for age assessment at Mbagathi Hospital and wrote a letter addressed to the relevant institution on behalf of the client recommending for change in the year of birth in the client’s national Identification Card (ID).

The requested process was successful and the client was issued with a new ID card and is currently registered and earning the stipend for the elderly thanks to the work of the community paralegal.

RCKM

Kituo Cha Sheria

 

Reparations NOW: Highlighting the Right to Truth

truth reparations 1

Reparations NOW: Highlighting the Right to Truth

On 24th March 2018, the world marked International Day for the Right to Truth concerning gross human rights violations and for the dignity of victims. Civil society organizations under the umbrella network of the Kenya Transitional Justice Network (KTJN), together with the UN Office of the High Commission for Human Rights, the Attorney General’s office and development partners convened together with victims and survivors of past human rights violations in Kenya post independence to date.

The day provided an opportunity for all stakeholders to promote national dialogue on the reparations agenda and draw the society to the truth behind human rights violations that have been committed over the years and what Kenyans need to do as a nation to promote, protect and fulfill human rights.

The right to the truth here in Kenya is primarily enshrined through Article 35 of the Constitution on access to information. Other critical articles include Article 47 on fair administrative action, Article 49 on the right of arrested persons and Article 50 on fair hearing. The Truth Justice and Reconciliation Report (TJRC) remains one of the most decisive efforts in achieving the right to truth. Through the TJRC Report, the right to the truth has been invoked in light of the thousands of cases of extra judicial executions, the hundreds of enforced disappearances, victims of torture who remain unrepaired in places like Mount Elgon in Western Kenya, victims of sexual violence from various epochs particularly at the hands of security forces.

The right to the truth implies knowing the full and complete truth as to events that transpired, their specific circumstances, the identities of those who participated (and directed), knowing the circumstances those violations took place and why? To understand this, one only has to look at the Truth Justice and Reconciliation Report (TJRC Report) Volume 2A pages 221 to 366, in a bid to uncover the truth.

Unfortunately, many of the victims and survivors of gross human rights violations do not know the truth behind the violations done to them. Over 1,000 women who were raped in the 2007/2008 post election violence period and subsequent general elections by state security officers are among the many survivors seeking justice and compensation against these sexual violations.

In 2017, KTJN through the leadership of the International Center for Transitional Justice (ICTJ) presented a policy proposal for reparations of historical injustices to the Office of the Attorney General. The policy proposal provides a theoretical framework and guidelines for operationalization of the Reparations for Historical Injustices Fund subsequently established by President Uhuru Kenyatta in his March, 2015 State of the Nation Address.

The purpose of the Reparations for Historical Injustice Fund is to be the institutional framework for implementation of a program that provides reparations to victims of human rights violations committed or condoned by the State between 12th December 1963 and 28th February 2008.  The funds will also help in restoring the dignity of victims through acknowledging the wrongdoing, the harm suffered and the state responsibility to promote, protect and fulfill human rights.

The main objective of the policy is to guide implementation of a comprehensive reparations program that provides adequate, effective, accessible and prompt reparation that is; to the greatest extent possible, proportional to the gravity of the violation and the harm suffered, while integrating existing structures and programs to ensure efficient, transparent and accountable delivery of services to victims and the broader Kenyan public.

Implement the reparations fund…

Survivors of past human rights violations are therefore, urging the government to fast track the adoption and implementation of the reparations fund. Implementation of the fund will assist in alleviating the pain and suffering the survivors have endured over the years.

Faith Ochieng’

Program Manager

AGCP- Kituo Cha Sheria.

 

Know your Labour Rights Vlogs Series

Are you employed or looking for employment? Then this is for you!

All you need to know about your labour rights!

You may watch your labour rights explained Haki Vlogs Series HERE>>

Termination of Labour

https://www.youtube.com/watch?v=n0EPwe3csqg

https://www.youtube.com/watch?v=l5ptiNo_DzU

  • An employer is required to give reason of termination to the worker. If the employer fails to do this, the termination will be considered unfair.
  • Before terminating the employment of an employee or summarily dismissing an employee, the employer should hear and consider any explanations or reasons which the employee may give.

Reasons for Termination

For specific reasons

  • The employee is incapable of performing the job
  •  After receiving a final warning letter, the employee continues with misconduct or indiscipline
  • The employee suffers from prolonged illness that makes him/her unable to perform his/her normal duties

Summary Dismissal

An employee may be summarily dismissed for gross misconduct. Gross misconduct includes:

  • Absence from the workplace without permission
  • Being drunk at the workplace
  • Neglecting to perform any assigned work
  • Use of abusive language or behaviour in the workplace
  • Failing to obey a lawful and proper command that is within the employee’s scope of work
  • Arrested for a crime that can lands the employee in jail and is not released within 14 days
  • Committing a criminal offense against the employer or his/her property
  • Summary dismissal takes place without a termination notice. It is immediate.

Redundancy

  • This means the loss of employment where the services of an employee are no longer needed
  • Before declaring an employee redundant, the employer must meet the following conditions:

The employer must notify the trade union if the employee belongs to one and the labour office in that area. In the notification, which is given one month before, the employer must include the reasons for the redundancy.

If the employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

Before declaring an employee redundant, the employer has to consider the work experience, ability, job group and reliability of the employee

  • The employer should give the employee one month notice or one month’s salary in place of notice
  • The employer should pay for the remaining leave days in cash
  • The employer should pay the employee severance pay of 15 days salary for every year worked

Termination Notice

If you are paid daily – either the employer or the employee can terminate the contract at the end of any day without notice.

If you are paid periodically at intervals less than a month e.g every 2 weeks or 3 weeks – either the employer or employee can terminate the contract by giving notice in writing equivalent to the intervals of payment. So if you are paid every 2 weeks, give a 2 week notice in writing of termination of employment.

If you are paid at intervals of one month or exceeding one month – either the employer or employee can give a 28-day notice in writing of termination of employment.

However, if you have a contract that clearly states when your services end or the period needed to give a termination notice for your contract – then you should follow what your contract states.

If an employee who receives notice of termination is not able to understand the notice, the employer should orally explain the notice to the employee in a language the employee understands. The employee should have another employee or union representative of his/her choice present during this explanation.

If an employee or employer terminates a contract without notice, then the following happens:

  • Employer- must pay the employee what he/she would have earned during the notice period. e.g. If you are fired without notice, your employer must pay you one month full salary
  • Employee- if you decide to end your contract without giving notice to your employer – then you will pay your employer what he/she would have paid you during the notice period. e.g. If you leave without notice, you must pay your employer one month full salary

Grievance Procedure and Institutions to approach

https://www.youtube.com/watch?v=3q6Ng9t2A9M

  • If an employee is not a member of a trade union, he/she should present their complaint or grievance to the immediate supervisor.
  • If there is no action taken, the employee should set an appointment with management.
  • If the matter remains unresolved, then the employee should file a complaint at the nearest labour office.
  • However sometimes the employee is forced to go straight to the labour office or the Industrial Court.
  • If an employee has been dismissed unfairly, he /she should present a complaint to a labour office within 3 months of the date of dismissal.
  • The labour officer will give an opportunity to both the employer and employee to give their side of the story and give recommendations on how to settle the dispute.
  • The employee also has a right to go to the Industrial Court to present his complaint. If the complaint is because of a contractual agreement, the complaint should be filed in court within 6 years. If it is because of injury at work, then the complaint should be filed within 3 years.
  • The employee must be able to show that he/she was unfairly terminated and the employer must be able to show the justification for termination.
  • An employee under probation or who has been summarily dismissed while under probation cannot complain at the labour office or at the Industrial Court.

NOTE: At the Industrial Court you do not need an advocate to represent you.  You can be represented by a trade union representative or you can appear in person ( self-represent). You can also hire an advocate if you want.

Remedies for wrongful dismissal and unfair termination

  • Where there was no notice given, the employee is entitled to the salary he/she would have earned had he/she been given notice
  • Where an employee is dismissed before the contract is over and the contract was such that the employee gets paid at the end of the contract and after completing his/her services, the employee is entitled to:-
  1. payment for work done until the time he/she was dismissed
  2. payment for losses incurred as a result of the dismissal
  • payment for losses arising between the date of dismissal and the date of expiry of the notice period
  1. money he/she would have earned had notice been given

Where an employee is unfairly dismissed, he/she may:

  1. be reinstated and continues to work like as if he/she was never dismissed
  2. not be returned to his/her original position but may be given similar or suitable work and be paid the same wages (re-engaged)

Before any recommendations are given, the labour officer or Industrial Court consider the following:

  • the wishes of the employee
  • the circumstances in which the termination took place, including if the employee caused or contributed to the termination
  • if it is practical for the employee to be reinstated or re-engaged
  • the employee’s length of service with the employer
  • the reasonable expectation of the employee as to the length of time for which his/her employment might have continued had he or she not been terminated.
  • the opportunities available to the employee for securing similar or suitable employment with another employer
  • the value of any severance payable by law
  • the right of the employee to claim for any unpaid wages or expenses
  • any expenses reasonably incurred by the employee as a consequence of the termination
  • any conduct of the employee which to any extent caused or contributed to the termination
  •  any compensation, including ex gratia payment paid by the employer and received by the employee.

Sexual Harassment

https://www.youtube.com/watch?v=1wHdBmnGdXU

An employee is sexually harassed if the employer or a representative of that employer or a co-worker:-

(a) directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity.

The sexual request may contain:

  • promise of preferential treatment in employment e.g if you have sex with me, I will give you a promotion
  • Threat of harmful or negative treatment in employment e.g if you do not let me touch your buttocks, I will ensure that you do not go on leave or I will make your life here a living hell
  • Threat about the present or future employment status of the employee e.g if you do not kiss me now, I will fire you
  • uses language whether written or spoken of a sexual nature
  • shows physical behaviour of a sexual nature that is unwelcome or offensive and which affects employment, job performance or job satisfaction.

An employer who employs twenty or more employees should have a sexual harassment policy at the workplace.

Sexual Harassment Policy

This Policy will contain:

  • Definition of sexual Harassment
  • A statement explaining that;
  • every employee is entitled to employment that is free of sexual harassment
  • the employer shall take steps to ensure that no employee is subjected to sexual harassment;
  • the employer shall take disciplinary measures against any person guilty of sexual harassment
  • how complaints of sexual harassment may be brought to the attention of the employer
  • the employer will not disclose the name of the complainant or the circumstances related to the complaint except during investigations or if the employee wants to take disciplinary action

Judgement

Anyone found guilty of sexual harassment will be imprisonment for not less than three years or will have to pay a fine of not less than one hundred thousand shillings or both imprisonment and payment of a fine.

For more information on your labour rights write to info@kituochasheria.or.ke mhaki@kituochasheria.or.ke or SMS 0700777333

Kituo cha Sheria

We Care for Justice

 

RAPE NOT A ‘COMMON GOOD’-Maslaha

Opinion Blog

This is in response to a sad story in Wajir where community leaders used Maslaha, an alternative form of dispute resolution, to settle a case where a 15 year old girl was repeatedly gang raped for 2 days by 3 men. [Daily Nation, 4th March 2018- https://www.nation.co.ke/counties/wajir/Goats-used-as-fines-for-rape-in-Wajir/3444790-4328392-nnkfxcz/index.html

Maslaha

The Legal term of Maslaha within Islamic Jurisprudence means ‘the common good’ or ‘in the public interest.’ This is unbelievable because now the question would be, ‘which public?’

Although Article 11 of the Constitution of Kenya recognises culture as ‘the foundation of the nation and as the cumulative civilization of the Kenyan people and nation’, rape is a crime against the victim and against humanity at large.

A person is deemed to commit the offence termed rape if – (a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; (b) the other person does not consent to the penetration; or (c) the consent is obtained by force or by means of threats or intimidation of any kind. (3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

A crime of rape is an injury not only against the affected individual(s) but also against the society. Crimes are prosecuted by the state, which in so doing protects the social and constitutional rights of all citizens. The Constitution of Kenya 2010 recognizes the need for Alternative Dispute Resolution (ADR) to be employed in seeking justice rather than the much hostile court process. However, crimes like murder, rape, robbery with violence are crimes against humanity and as such the offenders/perpetuators must face the full force of the law and must not be accorded an opportunity to get away with their inhuman acts through the guise of traditional norm of ADR.

This is due to the fact that such traditional and customary agreements are repugnant to justice and morality and pursuant to Article 2(4) of the Constitution of Kenya 2010 which categorically states that ‘’Any law including Customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.’’ Therefore, at a minimum, the prosecution should be consulted before having the reconciliation agreements and customary laws applied in resolving the criminal cases.

The Criminal Procedure Code under Section 176 provides:

‘In all cases the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.’

The Director of Public Prosecutions is the custodian of prosecutorial powers. Prosecution of offences is a public policy concern, and in preserving this power to preserve the public interest, he/she cannot be by passed in negotiations concerning charges against an accused person as in the case of Juma Faraji Serenge alias Juma Hamisi v Republic [2007] eKLRMaraga, J. (the current Chief Justice) in his ruling stated:

‘To the best of my knowledge, other than in cases of minor assault in which a court can promote reconciliation under section 176…. of the Criminal Procedure Code and such minor cases a complainant is not allowed to withdraw a criminal case for whatsoever reason. In any case the real complainant in all criminal cases, and especially so felonies, is the state. The victims of such crimes are nominal complainants. And the state, as the complainant, cannot be allowed to withdraw any such case because the victim has forgiven the accused as happened in this case or any such other reason. The state can only be allowed to withdraw a criminal case under section 87A of the Criminal procedure Code or enter a nolle prosequi when it has no evidence against the accused or on some ground of public interest. And even then when it has convinced the court that the case should be so withdrawn”.

Maslaha, which is an alternative form of dispute resolution mechanism, is recognized under Article 159 (2) (c) of the Constitution which provides that:

‘In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(c) Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)

Clause (3) of the same article states:

‘Traditional dispute resolution mechanisms shall not be used in a way that:

(a) Contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law.

It should always be remembered that customary law is unwritten law but just a set of rules that exists in one’s mind and are passed on from one generation to another. This is due to the fact that there is nothing like customary law but what we have are customary laws as every community have a different set of beliefs all together. It is also imperative to note that despite the fact that the victims of offenses like rape subscribe to various customary laws that do not consider that injustice, they are still under the provisions of the constitution of Kenya 2010 and fully enjoy the rights of the said constitution. Therefore, the application of alternative dispute resolution mechanisms must be consistent with the Constitution and the written law of the land and check to ensure justice to both the offenders and the victims.

Equally, the Judicature Act in section 3(2) stipulates and provides that the customary law is only applicable to civil cases. It states that:

‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”

Therefore where the alternative dispute resolution mechanisms are to be used in the criminal matters, it is limited to misdemeanours and should not be considered on felonies.

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria

 

Success Story of Mwangi Njangu

succes-story

Mwangi Njangu Vs. Meshack Mbogo Wambugu Civil Appeal No. 239 Of 1990

Background of the Suit

Our Client was the Appellant herein Mwangi Njagu. On or around 9th February 1976, our Client entered into a sale agreement with one Sophia Nyakweya in which it was agreed that the our Client would sell One (1) acre out of all that piece of land known as L.R. NO. KONYU/BARICHO/695 for a consideration of Kenya Shillings Fourteen Thousand (Kshs.14,000/-). The said Sophia Nyakweya paid our Client the sum of Kenya Shillings Twelve Thousand Five Hundred (Kshs.12, 500/-) and a balance of Kenya Shillings One Thousand Five Hundred (Kshs.1, 500/-) remained. An application for the land control board consent was submitted but was not obtained. Our Client through his then Advocates one Messers Ghadialy & Co. Advocates informed Sophia Nyakweya of the same through a letter dated 29th August 1979 and further notified her that our Client was rescinding the sale agreement because the land board consent was not obtained.

Our Client then refunded the Kenya Shillings Twelve Thousand Five Hundred (Kshs.12,500/-) to Sophia Nyakweya. The said amount was refunded through a cheque and letter dated 5th November 1979, forwarded through the our Client’s Advocate Messers Ghadialy & Co. Advocates to the Respondent’s then Advocates one Messers A.J. Kariuki & Co. Advocates.

The sale agreement dated 9th February 1976 was executed between our Client and Sophia Nyakweya and the Respondent was never privy to the same. He was a stranger to the agreement and the fact that he is the husband to Sophia Nyakweya did not legitimize his fraudulent claim.

A dispute ensued and when the Respondent instituted a suit against our Client before a panel of elders and arbitrator, they made an award in favour of the Respondent, ordering for the sub-division of our Client’s land into two portions of One (1) acre for the Respondent and Four and a half (4.5) acres for our Client.  The Respondent later filed civil suit no. 214/80 in Nyeri, where he sought orders for specific performance. Our Client instructed Messers Ghadialy & Co. Advocates to represent him in the matter and he filed a memorandum of appearance but failed to file a defence. The matter proceeded without the our Client’s knowledge and Messers Ghadialy & Co. Advocates neglected and/or refused to participate in the proceedings and an ex-parte judgment was issued against our Client and being dissatisfied with the same, he filed this present appeal.

Issue for Determination

Our issues for determination were:-

  1. Whether the Respondent was privy to the sale agreement dated 9th February 1976.
  2. Whether the lack of consent from the land control board nullified the sale agreement dated 9th February 1976.
  3. Whether the mistake of Ghadialy & Co. Advocates should be visited upon the Appellant.

On 15th February 2018, a judgment was issued by Honourable Justice Mbogholi Msagha, where our appeal was allowed and the decision of the Chief Magistrate’s Court was set aside. Find herein attached the summary of C.A. NO. 239/90 – Mwaniki Mbogo Wambugu Vs. Meshack Mbogo Wambugu. We represented the Appellant therein and the Judgment was delivered on 15th February, 2018 by Hon. Justice Mbogholi Msagha in which our Appeal was allowed. Our Clients were very grateful for the assistance that Kituo has accorded them in a matter they first started pursuing in 1990. We Care for Justice.

RCKM

Kituo Cha Sheria