66-years later, Kisumu's oldest case trudges on with no end in sight

A protracted land dispute spanning over 66 years is bound to stay longer within the corridors of justice after the Court of Appeal sent the case back to the High Court for a full trial.

It is a dispute that pre-dates post-colonial Kenya and has been on and off different courts since 1957.

More than half of the judges who have handled it have either died or retired from the profession, as the oldest civil suit over the ownership of a parcel of land in Bumala trudges on.

Over the years, the tussle pitting two families has witnessed several twists and turns, including a criminal suit in 1985 and mistakes by judicial officers handling the case.

But still, the family of Gabriel Owino and Morris Ouma, and that of Odongo Khadudu, Oduori Khadudu and Owino Oduako are still hoping to find justice on who is the rightful owner of parcel number MARACHI/BUMALA/331.

Two weeks ago, the families were sent back to the drawing board after the Court of Appeal ordered a full trial of the case at the High Court.

This is after Justices Patrick Kiage, Francis Tuiyot, and Joel Ngugi declared that Justice Stephen Kibunja, who handled a suit filed at the High Court in the judgment stage in 2013, erred by failing to order for oral evidence before writing his judgment.

The three-judge bench noted that the judge relied on written affidavits despite an earlier order by another judge directing the use of oral evidence. "I would order that the suit be remitted to the High Court for full trial before a judge of that court," said Justice Kiage who delivered the judgment on behalf of the bench.

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In the appeal, Gabriel Owino and Morris Ouma had challenged the judgment of Justice Kibunja that had dismissed a suit in which they had sought the court to declare them as the owners of the contested parcel.

Land Registrar

They had listed nine grounds to contest the 2013 High Court judgment and maintained that the judge failed to consider their evidence. They claimed the judge erred by failing to find that they had been living on the contested parcel of land since 1939.

The appellants had also accused the judge of failing to find that a Criminal Case number 2878 of 1985 recommended that the Land Registrar, Busia, liaises with the Survey office, Busia/Teso Districts, to measure the land and resolve the dispute.

During the hearing of the appeal, an advocate representing Owino and Ouma told the appellate court that an earlier order by a judge who also handled the case had directed for oral submissions. He claimed the order was still active when Justice Kibuja took over the case and delivered a judgment in 2013.

In their judgement, the three-bench judge stated that the court failed to appreciate the full facts of the case by failing to order oral evidence.

"Proceeding by way of oral evidence was ideal in this matter, particularly because the facts herein were highly contested," read the judgment.

They ruled that the failure to consider oral submissions was prejudicial. "I am therefore of the respectful view that the learned judge erred in proceeding to write judgment on the basis of affidavit evidence when there existed an order that had not been vacated, ordering for oral evidence to be taken," stated Justice Kiage.

The history of the case dates back to the 1930s between Odongo Bor and Augustino Wambei.

According to court records, Bor, who was tired of walking to his home located miles away from his friend's every evening, requested to have one of his wives move to a portion of his friend's piece of land.

This was to save his wives from quarrelling time and again. The wife died years later, forcing the man and her children to return to his ancestral land. However, he left behind one of his friends, Augustino Wambei who moved in with his family in the 1930s after constructing a temporary structure.

However, when he outlived his stay, Odwako Khadudu asked him to vacate to allow him to develop the section of the land. Wambei declined to leave the piece of land and instead moved to the then Bungoma African Appeal Court's Divisional Court in 1957, an institution that ruled in favour of Khadudu.

Khadudu died in 1948, leaving his family fighting to save their 17 acres piece of land from being taken away from them, a fight that has been going on for more than 70 years.

It is a case that has been going on from one court to another as the two families continue fighting for the property in Busia County.

In 2001, Wambei's two sons - Gabriel Owino and Morris Ouma Omondi sued the host's children Odongo Odwako Khadudu, Odwori Khadudu and Owino Odwako; and asked the court to declare that they (Gabriel and Morris) were the rightful owners of the land.

They also wanted the court to substitute the Odwako family's name on the title deed with their names. In his affidavit, Gabriel indicated that they lived on the piece of land with their father uninterrupted, even after his death in 1989.

Suit property

Odwako's family opposed the application, saying they were registered as the owners of the suit property in 1971 upon adjudication, adding that the family to their father's friend have not been cultivating or using the land peacefully as claimed.

The court heard that in 1973, Gabriel's brother filed a case to have them evicted from the place, but he lost, and in 1985, Gabriel's father instituted criminal proceedings that they had trespassed into the land, but the court ruled in their favour.

The judge heard both parties, but while writing the judgment, two of the Odwako family members sued in the case died, and their certificates of death were filed in court. Owino died on April 20, 1985, and his brother Odongo on November 3, 2005, through a road accident.

The judge pointed out that even if the plaintiffs have been in occupation of the whole land or portions of it, their occupation cannot be said to have been peaceful or uninterrupted, as shown by the existence of previous litigations involving their family and the defendants' family.

Aggrieved by Justice Kibunja's decision, Gabriel and his brother Morris moved to the Court of Appeal, saying the judge erred in his findings. When the matter came before Chief Justice David Maraga when he was serving as an appellate judge in Kisumu on November 20, 2014, he allowed the parties to adjourn the case. This was to allow the lawyer representing the Odwako family to substitute the dead brothers after obtaining letters of administration.