The Judiciary has clarified that no court orders have been issued in relation to a land dispute involving an elderly couple in Lavington, Nairobi.
The couple, Mahesh Kumar Bhatti and Anita Bhatti, were arrested on Friday by the Directorate of Criminal Investigations (DCI) officers and evicted from their home on land parcel LR No. 209/7771/2.
The DCI claimed that the couple had forged documents to acquire the land, which belongs to Malkiat Singh Assi and Munir Ahmed Chowdhary.
However, in a public statement shared on Monday, the Judiciary said that the couple had filed a civil suit in the Environment and Land Court at Milimani, seeking to be declared as the owners of the land by virtue of adverse possession.
Adverse possession is a legal doctrine that allows a person who has unlawfully occupied another person’s land for a continuous period of at least 12 years to legally apply for registration rights over the property.
The statement said that the suit, filed under case number ELC 0.S E015 of 2023, had not been determined and that the court had only set a mention date for directions on 18th September 2023.
“Consequently, no court orders have been issued in respect to the properties in question whatsoever,” the statement read.
The Judiciary also urged the public to verify the emerging media reports and assured that the case would be handled fairly and expeditiously in accordance with the law.
“We remain ready to provide clarification as far as the process is concerned whenever required to protect the integrity of the proceedings,” the statement added.
— The Judiciary Kenya (@Kenyajudiciary) August 21, 2023
The arrest and eviction of the couple sparked outrage on social media, with many users questioning the role of the DCI and the legality of the action.
A video of their daughter, who claimed that strangers had stormed their home and grabbed their land hours after her parents were arrested went viral across various platforms.
You’re chilling in your house, the police @DCI_Kenya come and arrest your elderly parents, and then a private developer moves in, and fences part of your family home. That happened today in Lavington. @Lands_Kenya @IG_NPS the family want to know what’s going on. Kenya Yetu! pic.twitter.com/CUp79oiAxg
— The People’s Watchman (@bonifacemwangi) August 19, 2023
The DCI has not responded to the allegations or provided any evidence to support its claims.
In a tweet posted on Friday, the DCI said that it had acted on a complaint from Assi and Chowdhary, who alleged that they had been defrauded of their land by the Bhattis.
“The suspects were found in possession of forged documents purporting to be genuine ones from the Ministry of Lands.
They will be charged with forgery & obtaining money by false pretenses,” the tweet read.
MEDIA BRIEF ON LAVINGTON LAND CASE DOING ROUNDS IN SECTIONS OF THE PRESS pic.twitter.com/5dDXNeoJtD
— DCI KENYA (@DCI_Kenya) August 20, 2023
However, according to some media reports, Assi and Chowdhary are also facing criminal charges for allegedly forging documents and obtaining money by false pretenses from another person, who claims to be the rightful owner of the land.
The reports also indicate that there is a pending civil suit between Assi and Chowdhary and the other person, filed under case number ELC 0.S E014 of 2023, which is yet to be heard by the same court.
The Bhattis have maintained that they are innocent and that they have been living on the land for over 20 years without any disturbance or challenge from anyone.
They have also accused Assi and Chowdhary of colluding with some rogue DCI officers to harass and intimidate them.
“They came with guns, threatened us and did not show us any court order or warrant of arrest.
They just took us away and left our daughter alone in the house and also took our documents and money,” Mahesh Kumar Bhatti told a section of media reporters.
The Bhattis’ lawyer, Wainaina H/B Nganga Ngigi, said that his clients had filed an application for an injunction to restrain Assi and Chowdhary from interfering with their possession of the land, pending the determination of their suit.
He also said that he had written to the DCI to demand an explanation for the arrest and eviction of his clients, but he had not received any response.
He expressed confidence that his clients would succeed in their claim of adverse possession, as they had met all the legal requirements.
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years.
My clients have been in occupation of the land for more than 20 years without any interruption or consent from anyone.
They have also paid all the rates and taxes due on the land. They have a valid claim of adverse possession,” he said.
The case has raised questions about the security of land ownership in Kenya, especially in light of rampant cases of fraud, forgery, and corruption in the land sector.
It has also exposed the challenges faced by squatters who seek to acquire title deeds through adverse possession, which is seen as a way of preventing land wastage and encouraging land use.
The law on adverse possession in Kenya is derived from the common law and is codified in the Land Registration Act, of 2012.
According to the Act, a person who claims to have acquired title to land through adverse possession must apply to the Registrar of Lands for registration and must prove that they have been in exclusive, continuous and uninterrupted possession of the land for at least 12 years.
The Act also provides that the Registrar must notify the registered owner of the land and any other person who may have an interest in the land of the application, and give them an opportunity to object within 60 days.
If no objection is received, or if the objection is overruled by the court, the Registrar may register the applicant as the proprietor of the land and cancel the previous title.
However, if the registered owner or any other person proves that they have been in possession of the land at any time within the 12 years, or that they have acknowledged the title of the registered owner within that period, the application for registration will be rejected.
The Act also states that no action for recovery of land can be brought by any person after 12 years from the date when they were dispossessed or discontinued their possession.
The Act further states that a person who has been registered as a proprietor of land through adverse possession has the same rights and obligations as any other proprietor under the law.
As the case continues to unfold, we will keep you updated on new developments.
