Mombasa's deceased US army officer's kin fight over multi million property

A family of the late US military officer in Mombasa, Malik Saggaf, is fighting over a multi-million-shillings property bought from his terminal compensation by the US government.

Malik's family is fighting over a land that hosts a Sh10.6 million two-storey building in the leafy suburbs of Kizingo, Mombasa County.

Malik's brother, Mohammed Saggaf, is embroiled in a legal fight with Malik's wife, Salma Abubakar, and her two sons, Abubakar Saggaf and Ghazi Saggaf, over who should own the vacant land next to the two-storey family house.

Mohammed lost an appeal seeking to stop the sale of a prime piece of land by Salma and his two sons after the Appellate Court in Mombasa declined to stay the sale.

Salma was paid Sh7,920,000.00 by the American government after the demise of her husband on October 21, 2003.

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Salma agreed with his brother-in-law, Mohammed, that they would purchase a family house to host her and her two sons and Malik’s mother and father.

The family settled for a two-storey home with a vacant plot at Sh10.6 million, and Mohammed agreed to top up Sh2.5 million on the Sh7.92 million compensation to buy the property.

Prior to the purchase of the said land in the rich suburb of Kizingo, the family lived together in a rented house in Town.

Mohammed said that the family agreed that the suit property would be held in the trust of Salma for the benefit of her two sons and his mother-in-law and father-in-law.

Mohammed said that for his contribution of part of the purchase price, he was to own the vacant portion, which would be subdivided.

However, he said the subdivision process had commenced and was substantially done, but not completed.

Mohammed told Justices Francis Tuiyott, Kibaya Laibuta, and Grace Macharia that the said land was transferred without his knowledge to his nephews, who sought to sell it to Tudor Light Limited.

However, according to Salma, the terminal benefits paid by the US Government were paid to her as a sole nominated beneficiary, and she applied those benefits to acquire the suit property, which she transferred to her two sons when they attained the age of majority.

She told the judges that her sons have entered into a joint venture agreement with Tudor Lights Limited for the development of the suit property.

Salma denied that her brother-in-law made any contribution towards the purchase of the property or that she owes a fiduciary duty to him.

She further said that Mohammed has stayed on the suit property for the last 20 years without paying rent or any outgoings.

In his appeal before Justices Tuiyott, Laibuta, and Macharia, Mohammed filed an application to stay the sale of the suit land.

In a ruling dated October 15, 2024, Justice Luca Naikuni found Mohammed's petition to be time-barred.

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Justice Naikuni held that the time within which to bring the action began to run in 2005 when Mohammed's nephews were registered as owners of the suit property.

However, Mohammed said the time ought to have been reckoned from June 2023, when he discovered the alleged fraud.

In the appeal, the appellate judges said that Mohammed was unwittingly seeking compensation in monetary terms as an adequate remedy.

The judges declined to grant a stay against a money decree unless it is demonstrated by Mohammed that Salma and her sons will be unable to repay when required or that it will be exceptionally difficult to recover it.

"Insofar as the applicant (Mohammed) has not demonstrated, nay alleged, that the respondents (Salma and sons) are not in a position to pay up the compensation when called upon, then it has not been established that the appeal will be rendered nugatory if we do not grant the injunctions sought," said Justice Tuiyott.

The judges, however, said that the contention raised by Mohammed raised serious enough issues to warrant reflection in a full-blown appeal.

Mohammed said that should the stay not be granted, the loss he will suffer cannot be compensated by way of damages because it is within his knowledge that property prices in the Kizingo area have shot up considerably, and that he and his family have lived on the property for close to 20 years and that he has developed an attachment to the property and considers it his home.

Mohammed asked that alternatively he be paid the value of the undeveloped portion of the suit property.

He asked the appellate court to declare that a constructive trust or an implied trust existed between him and Salma, who was a trustee over the suit properties for his parents and nephews.

He also asked the court to declare that Salma breached her fiduciary duties as a trustee by transferring the suit property to her sons without regard to the unregistered interests of his parents.

Mohammed also asked the court to declare that his nephews did not acquire a good title and that the transfer of the suit property was null and void.

Mohammed asked the court to declare that the suit property is a trust where he owns the suit land and the house belongs to his sister-in-law, parents, and nephews, in accordance with Muslim succession law.

He sought a mandatory injunction compelling his nephews to jointly sell the suit property and surrender the equivalent value of the undeveloped portion and distribute the equivalent value of the building among the beneficiaries of the estate of the deceased.

In the suit, Tudor Lights Limited did not appear, though duly served with the hearing notice.