Justice delayed or compromised is justice denied, a centuriesâ€™ old saying goes.
It is under this scenario that a Kenyan High Court Judge told rogue Judiciary staff in Bungoma they would not see heaven.
The unknown staff members colluded with respondents in a land case to hide court files to the disadvantage of the plaintiffs.
Justice Boaz Olao in a landmark ruling on a case that has been courts for over 21 years could not hide his disappointment on the acts of the staff.
He began the ruling that has since gone viral by quoting a bible verse.
In Luke (NIV) 13: 24-25, it is written:
â€œMake every effort to enter through the narrow door, because many, I tell you will try to enter and will not be able to.Â
â€œOnce the owner of the house gets up and closes the door, you will stand outside knocking and pleading, â€œSir, open the door for us.â€ But he will answer â€œI donâ€™t know you and where you come from,â€ Justice Olao quoted the scripture.
Olao admonished the Judiciary staff who hid the files in reference to the bible verses, warning them that keys to heaven doors will disappear the same way they lost two key files that left the plaintiff landless.
â€œFor those members of staff at this court who caused the disappearance of Bungoma Chief Magistrateâ€™s Court Misc Application File No 49 Of 1999 And Bungoma High Court Civil Misc Application File No 155 OF 1999.
â€œWhen you finally arrive in heaven, you will find the gate closed and when you ask the Angel â€œSir open the door for us,â€ he will reply â€œSorry, the keys to the gate are lost like the two files that you hid at Bungoma Courtâ€,â€ the Judge indicated in the ruling.
Details of the Case
TrendiLeo.co.ke understands that the case being presided over by Olao was filed by Peter Wafula against Walucho Kituyi the respondent.
Wafula is the legal representative of the estate of Welimo Mukati who passed on before the case was concluded.
The court cited a lengthy and torturous path that Mukat endured in his quest for justice in the court corridors.
â€œAt all the material times, the deceased was the first registered owner of the land parcel NO. EAST BUKUSU/SOUTH NALONDO/1036 (the suit land),â€ the court stated.
Trouble began when Walucho, the respondent allegedly lodged a claim for the land at the Central Nalondo Land Dispute tribunal which finally allocated it in his favour and against Welimo.
Perplexingly, the decision by the tribunal was adopted as a judgment at the Bungoma Chief Magistrateâ€™s court on June 9, 1999.
Quickly, Walucho, the respondent in the matter transferred the suit land in his name with disregard to a subsequent court order quashing the tribunalâ€™s decision.
The decision by the Chief Magistrateâ€™s Court adoption of the tribunalâ€™s court was quashed by the High Court in Bungoma following an appeal by Welimo.
On January 21, 2001, High Court Judge Gideon Mbito annulled the tribunalâ€™s ruling and subsequent adoption by the magistrateâ€™s court,
DISAPPEARANCE OF FILES
Welimo however, had trouble enforcing the judgement delivered by Mbito in his favour courtesy of missing court files bearing the proceedings and rulings.
Both the files at the Chief Magistrateâ€™s Court and High Court mysteriously grew wings and disappeared never to be found again.
At the back of this calculated inconveniences Kituyi proceeded to get a title deed of the land on August 9, 2005.
This was despite staying orders barring transfer and registration of the suit land.
Kenya Anti-Corruption Commission (KACC) now the Ethics and anti-Corruption Commission (EACC) initiated investigations to dig out the two files but until today, no positive results have come out of the probe.
KACC, I a letter dated May 13, 2011, referred the matter back to the Deputy Registrar High Court in Bungoma.
This development worked in favour of the syndicate behind disappearance of the two court files who knew the complainants had no evidence to back their claim.
Wafula who succeeded Welimo in the matter, through an application dated July 16, 2011 requested for formation of a skeleton and the District Land Registrar to be ordered to cancel the title deed issued to Kituyi.
The application was tabled Mukunya J. on March 12, 2015, that was 4 years after the quest by Wafula.
Even then, it appeared that the skeleton file had also disappeared for a while.
The orderlies indicated that the Judge had ordered the file needed to â€œremain under lock and key in the registry.â€
However, on November 8, 2017, that application was dismissed for want of prosecution prompting Wafula to file for a review of the matter.
Wafula requested the Environment and Land Court to review and/or set aside the orders that dismissed initial application for want of prosecution and have it reinstated.
The application was opposed.
Ruling on the issue, Justice Olao could not hide his sympathies for Wafula as he ruled on the matter.
â€œIn the matter now before me, there is no suggestion that the decree arising from the Judgment of MBITO J is in error. What the Applicant is seeking is in fact to issue an order that is completely at variance with that decree.Â
â€œAnd of course, most significantly, there is no civil suit before me where the ownership of the suit land has been determined,â€ stated the judge.
Olao said the upshot of the happenings was that the court indeed sympathised with Wafulaâ€™s predicament, there was no way it could grant solid remedies sought in the Notice of Motion dated July 2, 2020.
The judge only hoped that the judicial staff would take heed of his counsel and ensure justice is administered to Wafula.
â€œAbout the involvement of â€œsome Court Officialâ€ in â€œsuspiciousâ€ conduct. Hopefully, they will take heed of my opening remarks in this ruling because it appears that this abhorrent practice has been with us for a long time,â€ he concluded.
The ruling was delivered at the Bungoma court electronically in October 19, 2020.