A British national has been permitted to forcibly enter and take possession of his matrimonial home and commercial properties.
His stepchildren had prevented him from accessing the properties since he was granted letters of administration three years ago.
Simon Harold Shiels has been unable to access the property despite winning a civil dispute regarding its management and control.
However, the High Court in Malindi intervened by allowing him to enter the property and take charge for purposes of inspection and management.
“The court bailiff, Isaac Ntongai Samwel, be and is hereby allowed to break into all that residential house situated at Mtangani, Malindi more particularly the white house and guest house standing on Plot No 4843 (Orig No 1935/583) and Plot No 4842 (Orig No 1935/582),” said Justice Stephen Githinji in a ruling dated October 23.
The judge noted that he was convinced Mr Shiel’s request for the court bailiff to oversee the execution of the court’s order issued in 2021 was justified, as he had been prevented from taking possession of the property ever since.
Justice Githinji stated that the grant issued to Mr Shiel to administer the property has never been set aside, reviewed, or appealed against; therefore, the court’s intention was necessary.
“It, therefore, appalls this court that the respondents would hinder the petitioner from taking possession of the properties. These were the orders of the court and orders of the court are self-executing and do not require external forces to be executed,” said the judge.
In his court papers, Mr Shiels said that he had been appointed the administrator of the property as the surviving spouse of his late wife, Jacinter Njoki Akoth, in a civil dispute with the stepchildren.
“Ever since, I have faced obstacles, threats, assaults, and malicious damage to property from the stepchildren, who, despite the court’s judgment, do not recognise me as the administrator of the estate and the surviving spouse,” he told the court.
He also stated that he had offered a fair distribution of the estate, which the stepchildren do not appreciate, and through external forces or third parties, they have vowed to prevent him from entering the property.
Mr Shiels further stated that he engaged the services of Mr Ntongai, whose attempt to gain access to the building was thwarted, despite being accompanied by police officers.
He therefore sought break-in orders to enable him to inspect the state of repair, take inventory, and maintain control of the premises as outlined in the distribution list per the certificate of confirmation of grant issued to him on December 17, 2021.
He sued Mary Akinyi and Anthony Otieno, whom he accused of obstructing his access to the property.
Mr Shiels had been charged with the killing of Ms Njoki.
Ms Njoki died on January 21, 2018, when she was run over by a vehicle allegedly driven by the foreigner along the Thalathameli-Kaoyeni road in the Ganda area of Kilifi County.
Knocked down
It has been alleged that the deceased was reportedly fleeing for her life when Mr Shiels, driving his Mitsubishi pickup, caught up with her and knocked down the motorbike on which she was a passenger.
Mr Alex Kahindi was the bodaboda rider carrying Ms Njoki at the time of the incident.
Initially, Mr Shiels faced traffic offence charges, but after years of investigations, the Office of the Director of Public Prosecutions (ODPP) revised the charge and upgraded it to murder.
The traffic offence was withdrawn from the Malindi Court two weeks before the murder charge was filed. Mr Shiels was accused of causing death by dangerous driving.
Ms Njoki and Mr Shiels are alleged to have had a disagreement before the incident.
This disagreement led the woman to flee and board Mr Kahindi’s motorbike.
It was alleged that the foreigner then pursued and ran over them after knocking them down.
Ms Njoki was pronounced dead upon arrival at a Malindi hospital.
A postmortem examination revealed that she had died from haemorrhagic shock due to head injuries.
Documents filed in court revealed that a heated property dispute arose between Mr Shiels, Njoki’s ex-husband Amos Okoth Oluoch, and her children shortly after her death.
The woman’s children, Mr Otieno and Ms Akinyi, along with her relatives, contested the foreigner’s claim to the property they believed belonged to their mother.
In a case filed in 2018, Mr Oluoch sued Mr Shiels over the ownership of the property valued at millions of shillings.
Mr Oluoch argued in the case that despite their separation, their marriage had not been formally dissolved, and therefore he was still her legal husband, as they had been married under Luo customary law in 1981.
“We separated but never divorced, so I am her dependent,” he stated.
However, he did not provide evidence to support this claim of a marriage conducted under Luo customary law.
The court still assumed that they were married, as they had lived together for over 10 years and had two children.
Evidence presented in the case showed that after Oluoch and Njoki separated, she married Mr Shiels, and they lived together for a few more years before her death in 2018.
Court documents also indicate that the foreigner paid a dowry to the woman’s parents in a marriage under the Gikuyu customary law.
During the marriage with the foreigner, the couple acquired properties in Malindi worth millions of shillings.
However, Mr Oluoch referred to the foreigner as a “casual” boyfriend who took advantage of their separation to date her.
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