'Dead' client haunts Mombasa lawyer in Sh75m land tussle

Wednesday June 19 2019

A view of the Mombasa Law Courts.

A view of the Mombasa Law Courts. PHOTO | FILE | NATION MEDIA GROUP 

BRIAN OCHARO
By BRIAN OCHARO
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A Mombasa advocate has filed an application to withdraw from a land case after the court directed him to respond to claims that a client he has been representing in the dispute is dead.

Mr Robinson Malombo wants to recuse himself from the case on allegations that he has been unable to get to Mr Joash Adamba for further instructions to continue acting on his behalf.

The lawyer alleges in an application filed before Environment and Land Court judge Anne Omollo that because of communication breakdown, he has not received sufficient instructions from Mr Adamba (allegedly dead) hence he has unable to continue representing him in the matter.

“I have since been unable to get to my client to give further instructions on the matter since there is need for further affidavit, which is necessary to enable me file the same to prosecute and or take care of his interest,” Mr Malombo said in the application.

Mr Adamba has been sued over ownership of a prime land in Nyali valued at more than Sh75 million.

'ESTATE ADMINISTRATORS'

In another dramatic turn of events, two people have emerged claiming to be the administrators of the estate of Mr Adamba, whom they have described in court papers as dead.

Mr George Adamba Musiega and Ms Judith Liveha describe themselves as the administrators of the estate and have filed in court a notice of appointment of advocate to act for them in the case.

“Take notice that Mr Musiega and Ms Liveha (the administrators of the estate of the estate of Joash Adamba (Deceased) the defendant herein have appointed the firm of Wandabwa Advocates to act on their behalf,” the notice said.

This notice of appointment of advocate by the two individuals confirms claims by other parties in the matter that Mr Adamba who was sued last year died before the suit was filed.

A party has claimed that the defendant may have died many years ago, but it is interesting how the deceased filed an affidavit earlier this year defending his ownership of the prime land.

When the matter came up for hearing last week, the file could not be traced in the registry but it was later found in the evening after the court sessions had ended.

The parties were then directed to take a hearing date at the registry.

The case was coming up for Mr Malombo to respond to the allegations that his client is dead as claimed by other parties in the suit.

Justice Omollo has now temporarily stopped any further proceedings in the case until the allegations brought to the attention of the court that the defendant is deceased is confirmed.

“Since a party has intimated that the defendant in this suit is deceased, it is imperative that this be confirmed before any further proceedings are held in this file,” the judge said in her last direction in the file.

The judge has also directed other parties in the matter to respond to the issues raised before the court.

In the case, Mr Joel Titus Musya , Mr Paul Ongidi Omolo and Ms Pamela Auma Ogola have sued Mr Adamba, all seeking to dispossess him of the land.

FORGERY

Another party Ocean Bay Group of Schools Limited has also applied to joined In the case claiming it owns the property after entering into negotiation with William Munyoki, who is said to be the beneficial owner.

But Mr Munyoki filed an affidavit distancing himself from said negotiation with the company, saying if there are documents suggesting he was part of the deal, then a forgery was committed without his knowledge.

“I have seen documents purporting I own the property having allegedly inherited the same from Mr Adamba, my purported biological father and other documents accompanying the suit papers,” said Mr Munyoki.

“The said documents are forgeries as at no given time have I been a son of Mr Adamba, either biological or otherwise, neither have I petitioned for letters of administration or executed any documents.”

'PRESCRIPTIVE RIGHTS'

The three claimants are battling for the property, which has largely remained idle with each demanding to be declared the land owner on the basis that they have occupied it for more than 12 years.

The claimants argue that they have been in uninterrupted and open occupation of the suit property for more than 12 years and that having lived on it for the foregoing period of time, they have acquired prescriptive rights over it.

Mr Musya claims he has been paying land rates and has been residing on the disputed plot for more than 17 years.

“I have been in occupation of the suit land continuously, openly, adequately and uninterrupted...,” he said.

Mr Musya further claims that there is no structure to prove that Mr Adamba lived there and that there is no evidence of trees or any structure on the ground to prove his presence in the disputed property.

On his part, Mr Ongidi argues that he has been in possession of the disputed property for over 20 years and has been paying land rates, hence it was necessary that he be accorded a chance to be heard.

“I am duly and legally entitled to the said land by virtue of adverse possession,” he said.

On the other hand, Ms Auma argues that she has been living in the suit land for more than 12 years hence she is entitled to be registered as the owner.

“After the demise of my parents, I built a permanent residential house and continued with peaceful occupation of the suit premises. While entering the premises, I did not seek authority from Mr Adamba, who is the registered owner of the property,” she said.

The woman, who also joined the case as an interested party, said she was born in Kisumu in 1980 but moved into the suit land in 1998 with her parents where they erected a temporary structure.