By Wahome Thuku
THE Muteshi case was heard by Nairobi High Court judge Rose Ougo. Upon hearing all the evidence, the judge framed several issues for determination.
i. Was Muteshi the owner of the land?
ii. Was the subdivision to 9 plots fraudulently done.
iii. Did the defendants commit acts of fraud.
iv. Was Muteshi entitled to mense profit.
v. Was Muteshi was entitled to costs and who should pay?
The judge had an easy time determining the matter. On the first one, she held that there was undisputed evidence that Muteshi acquired the land in 1968 from the Settlement Fund Trustee after he applied and was allotted the land. He was issued with a title on the 17th March 1989 after he fully repaid the loan he had taken.
He was still in possession of the title deed and had never been surrendered by him or cancelled by the commissioner of lands.
In any case even the evidence of the AG and he Commissioner of Lands supported Muteshi’s claims. The judge concluded that Muteshi was the proprietor of parcel Uasin Gishu/Tapsagoi/33.
On whether the subdivision of the land to 9 plots was fraudulently done the court said it was obvious that the subdivision was not only irregular but fraudulent as Dorothy Yator who is alleged to have sold the land completely denied owning it. She denied having ever sold it to William Ruto.
Dorothy brought a handwriting expert to confirm the signature on the transfer of land forms and mutation forms were forged. She also denied that the passport photo on the transfer of land forms was not hers…
Further Ruto alleged that he was a bona fide purchaser but there was no sale agreement produced as evidence of sale between him and Dorothy.
The judge said Ruto ought to have rigorously defended this allegation in court but he chose not to.
Likewise Bethwell and Kosgei who allegedly met Ruto in Nairobi saying they had authority to sell the land on behalf of Dorothy were never called to testify to support this evidence nor were they joined as parties to the suit.
The court noted also that surveyor Opiyo was merely called by one Kiptugen who he claims he did not know before, he received instructions and went ahead to subdivide land on a copy of title that he was shown.
He testified in court that he met one Kiptugen in August 2008, yet his written statement states he was instructed by Dorothy Yator in June 2007.
The judge said all the evidence tied together clearly showed that there were fraudulent activities in the manner in which Muteshi’s land was subdivided and therefore the subdivisions were not only irregular but illegal.
On the 4th issue on whether the defendants committed acts of fraud, the court exonerated Dorothy based on her evidence.
On the 5th issue as to whether Muteshi was entitled to mense profit the court held that although Muteshi had claimed mesne profit he has failed to adduce evidence to prove this claim hence the court was unable to award him the same.
The judge observed that Muteshi had no record of the animals and equipment he had on the farm as at 2008. However there was evidence that he was ejected out of his land in 2008 and Ruto had admitted taking possession from 2008.
The court ruled that based on the findings on fraud, Ruto was a trespasser on the land.
“The plaintiff (Muteshi) being the owner of the land was denied access to his property by the 1st Defendant (Ruto)” the judge noted.
The court further noted that Muteshi wrote to Ruto in September 2009 and a reminder in November 2010[ before filing suit. Ruto did not respond to these letters.
The court held that Ruto had failed to prove that he was a bonafide purchaser for value.
“I do recognize the fact that the plaintiff (Adrian Muteshi) enjoyed his land before it was taken away from him and I take judicial notice that the area in issue is a place where people have farms that produce grains that feed not only the area but parts of this country. It is not denied that the 1st Defendant (William Ruto) was farming when in occupation as stated by the plaintiff. The plaintiff is entitled to compensation for the period he was denied access and possession. In my view the 1st Defendant (William Ruto) must compensate the plaintiff. The 1st Defendant did not testify that he had given back the land to the plaintiff. In the plaint the plaintiff has sought any other relief that the court finds fit. I therefore award the plaintiff Kshs 5 Million to be paid by the 1st Defendant (William Ruto) as compensation. Interest shall accrue from the date of filling suit until payment in full at courts rate”.
The court granted all the orders sought by Muteshi. It ordered that Ruto be evicted from the land and the eviction be effected under the supervision of the OCS Turbo Police Station.
The judgement was delivered on 23rd June 2013, three years after the case was filed. It meant over and above the Ksh5 million, Ruto was expected to pay interest on the money for three years.
The court held that the AG, the Commissioner of Lands and Opiyo the surveyor were involved in the irregular acts but they did not enjoy the land. They were ordered to pay costs of the suit to Muteshi.
Dorothy was exonerated from any wrong doing but she was to pay her own costs of the case.
Ruto eventually handed over the land to Muteshi family. I don’t know if he paid the money as ordered.
RIP Adrian Gilbert Muteshi