A court has allowed retired PCEA cleric Timothy Njoya to evict a woman who claims to be his stepmother from a four-acre parcel of land owned by his father in Mukurweini, Nyeri County.
Nyeri Senior Principal Magistrate Phillip Mutua Monday refused to declare Mary Wangui Maina as the proprietor of the land and instead ruled that she is a trespasser.
Mr Mutua said Ms Maina should voluntarily vacate the land within 30 days, failure to which an eviction order will be issued and she will bear the cost of the eviction.
Both Rev Njoya and Ms Maina have since 2005 been engaging in a protracted court battle over the ownership of the land.
The court also awarded the Reve Njoya Sh100,000 as nominal general damages for trespass.
"Any person wrongfully disposed of land has right of recovery and damages in respect to loss suffered," said Magistrate Mutua adding that Ms Maina should pay costs of the suit.
Through the Federation of Women Lawyers (Fida), Ms Maina insisted that she was the wife to Rev Njoya's father, Nahashon Njoya Murere, for 19 years from 1977 to 1996 when he died.
She produced a statement by Thimba clan elders of Ngoru village, Muhito Location showing that she and Mr Murere were cohabiting.
"On February 5, 1977 the deceased paid a visit to my home in Nyeri and informed my parents that he had the intention to marry me," said Ms Maina in her evidence.
She said before Mr Murere's death, they were living together on the disputed land, which Ms Maina considers as her matrimonial home.
"We were blessed with four children - George Mathenge Njoya, Anthony Maingi Njoya, Nelius Muthoni Njoya and Lesho Njoki Njoya. The suit property is part of the estate of my late husband who is also father to the plaintiff," said Ms Maina.
The first two children, she told the court, were from a previous union and Mr Murere had accepted to look after them as his own.
She also indicated that the Thimba clan elders had confirmed the marriage under the Kikuyu customary laws.
Ms Maina narrated that before Mr Murere died, he had moved his homestead from the side of the land owned by Rev Njoya to the suit land, where she has lived for 41 years with her four children.
"I began constructing my house in 1981 after the birth of my daughter Nelius Muthoni. The plaintiff reported his father, the deceased, to the chief of Muhito Location, one Mr Kiama, with the demand to be given more land. The chief summoned the deceased who confirmed in my presence that I was his wife and I have a right to inherit his share of the property," said Ms Maina.
The court heard that prior to Mr Murere's death, Rev Njoya and his siblings were harassing her by alleging that she was not a wife of their father and hence cannot claim any beneficial interest in his property. She said when Mr Murere was sick, she was taking care of him as a wife.
Ms Maina added that the Rev Njoya filed succession proceedings at the High Court in Nairobi in 1997 in respect to his father's property without her knowledge and consent.
"I challenged the same by filing an application for revocation of grant which was dismissed in unclear circumstances," stated Ms Maina.
Fida also asked the court to declare Ms Maina the legal owner of the disputed land through adverse possession.
But the in his ruling the magistrate said Ms Maina cannot be declared the owner of the land on grounds of adverse possession.
"There is no enough proof by the defendant that she has been in occupation of the land for more than 12 years," said the magistrate.
He noted that Rev Njoya has a valid title deed of the land and is entitled to its ownership and possession.
"No person then, without the authority of the plaintiff (Rev Njoya) should have any right to enter therein. He is the registered owner and has all the rights and privileges associated with that status. The rights include exclusive use, possession and enjoyment thereof without interference by any third party," said Mr Mutua.
In his evidence, Rev Njoya said that Ms Maina was his father's house help and not a wife.
He explained that Ms Maina's services as house help were terminated in 1990 following a discovery that his father had prostate cancer and needed special medical care. Ms Maina was unable to provide such care and her services were terminated, he stated.
But a few months after his father died, Ms Maina entered into the land and built a residential hut.
Rev Njoya's efforts to sell the land to Thika Coffee Mills in 2005 were thwarted after Ms Maina's opposed the transfer.
"It was when I was served with her application for revocation of grant in May 2005 that I learned that she was claiming to be a widow of my father and that she wanted to inherit it, belatedly as it were," stated Mr Njoya.