14 June 2019

Kenya: Hague-Based Lawyer Accuses Judge of Bias in Fight for Land

A Hague-based lawyer is seeking the reversal of an order vesting ownership of his land in Kisumu with a businessman.

Thomas Khamala Bifwoli has filed a suit at the Court of Appeal, asking it to issue an order against businessman William Ndinya Omollo, who is also a lawyer.

One of Mr Bifwoli's arguments is that justice Stephen Kibunja, who issued the ruling that favoured Mr Omollo, was biased, so all his orders should be reviewed.

Mr Bifwoli raised his complaints against the judge with the Judicial Service Commission but it is yet to determine the matter.

LEASE TRANSFER

The complainant alleges that the fraud began with a survey map indicating the acreage of the land in dispute. He wants this declared a nullity.

Mr Bifwoli further states there was a non-existent subdivision and that after that, a forged certificate of lease in the name of Joseph Mungai Kariuki came into being.

He also says that a transfer of lease was registered in the name of Reuben Mwithiga Thuo, and later in the name of Onesmus Odari, without the signatures of all parties.

"For instance, the transfer of lease document allegedly used [in Mr Odari's case] is not signed by both the buyer and seller, is not stamped and is not supported by the white card and green card," he says.

He goes on to say that no evidence has been tabled on the payment of the statutory stamp duty and rates.

TRANSACTIONS

Mr Bifwoli further faults the transactions arguing that PIN certificates, identity cards and passport-size photographs were not certified as required in law and that there was no date for the presentation of documents to the Registrar of Titles.

The complainant also says the transactions were tainted and that the court awarded Mr Omollo costs yet he filed forged documents.

"For instance, the transfer of lease document is not signed by the Land Registrar," he says.

Mr Bifwoli further says Mr Omollo did not obtain the mandatory consent before the lease was issued and that his land was irregularly transferred as evidenced in paper trail.

STAY ORDERS

Overall, the lawyer has questioned how ownership of his land was transferred from Mr Odari to Mr Omollo.

Mr Bifwoli argues that pursuant to section 47 of the Evidence Act, a judgement obtained through fraud is illegal, null and void and incapable of being executed.

He wants the court to stay its execution and restrain Mr Omollo from holding himself as the bona fide owner of the land, pending the determination of his appeal.

Mr Bifwoli says the costs he has been asked to pay are "illegal" and that they arose because he complained to the JSC.

The court of appeal will determine the issues in dispute on June 17.

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