A Greek family, a prime beach plot and a 20-year-old dispute

In the words of Land and Environmental Judge Oscar Angote, the case is replete with accusations, counter-accusations and fraud.

The dispute over the ownership of a parcel of land in Kilifi County belonging to a Greek national can pass off as a film. After close to two decades, the matter is yet to be resolved by the court.

The saga revolves around a prime property which is purportedly sub-divided by the son of the property owner.

He has no legal capacity to sub-divide the parcel despite the fact that he is the sole heir of his late mother’s estate.

Sadly, he passes on before the long-running court battle is resolved and thereafter the court file goes missing from the court registry.

A retired judge alleged to have issued court orders disowns his signature and records a statement with police.

In July 1992, Androniki Philotas Ghikas, a Greek national based in Kilifi, died leaving behind her only son Marios Ghikas, a resident in Moshi, Tanzania, and Mombasa.

She owned 7.2 acres of land in the county. Following her death, the High Court appointed an advocate, Mr Ushwin Khanna, to administer the estate on behalf of Mr Marios.

One year later, Mr Marios sub-divided the parcel into two and allegedly opted to sell six acres for Sh6.5 million.

Court documents indicate that on February 23, 1993, Mr Marios entered into an agreement with a Nairobi-based businessman, Mr James Kanyita Nderitu, and his wife Hellen Njeri who agreed to pay a deposit of Sh1.03 million and the balance in instalments.

One year later, the couple moved seeking specific performance for Mr Marios to transfer the property. And in case he declines, the deputy registrar of the High Court was directed to sign on his behalf.

This happened and in October 1995, a judgment was entered in favour of the Nderitus.

Consequently, Justice Gideon Mbito ordered the transfer of the property and directed Mr Nderitu and his wife to deposit the balance of Sh4.3 million in court. The balance was not paid according to court records.

Meanwhile, the property which was to be registered in the names of the couple was instead registered to Rehema Estate Ltd, a company believed to belong to the Nderitus.

Staring at a clear scheme to defraud him of the property, Mr Marios moved to court in 1997 seeking to set aside the judgment. He argued he had no legal capacity to sell or transfer the land.

SEVERAL SUITS

But before his application was heard, the court file went missing forcing Mr Marios to apply for the reconstruction of another file.

However, the advocates on record for the Nderitus, whom the court said were reasonably the only persons with copies of the plaint and all other court documents relating to the case, said they were no longer acting for the couple.

As fate would have it, Mr Marios died on July 12, 2012 before his application was heard. In addition, a completely new stranger, Mr Mohammed Swaleh Athman, emerged and moved to court seeking to be declared the land owner.

The court noted that, peculiarly, the administrator of the estate of the late Ms Androniki, the registered owner of the original parcel, was not made a party to the suit lodged by Mr Athman.

Mr Athman obtained an order on September 3, 2008 and was registered the owner of the original parcel. On April 20, 2009, the suit, by consent of the parties, was marked as withdrawn.

But two days later, Mr Athman sold and transferred the original parcel to a third party, Kanzi Bay Company Ltd.

When Rehema Estate Ltd learnt of the development, it filed another case against Mr Athman, Kanzi Bay and the Registrar of Titles.

In total, nine suits have since been filed but which were later consolidated by then High Court Judge Jackton Ojwang in April 2011.

Justice Angote heard the dispute and on December 19, 2013 set aside the initial judgment forcing the parties to move to the appellate court.

But Court of Appeal Judges Asike Makhandia, William Ouko and Kathurima M’Inoti ruled on Friday that Justice Angote did not err by setting aside the default judgment and all consequential orders.