Politics and policy
Moi appeal against eviction runs into hurdles
Posted Friday, August 10 2012 at 18:52
A legal technicality may jeopardize former President Daniel arap Moi’s appeal in the Supreme Court seeking to challenge the Court of Appeal ruling that he surrenders a 100-acre farmland in Nakuru.
The judges allowed Moi High School Kabarak which the former president owns to harvest the crop and vacate the land within six months or be forcefully evicted without recourse to the courts.
Although the Supreme Court has jurisdiction to hear and determine petitions from the appellate court, any other court or tribunals, Article 163 of the Constitution stipulates that such matters must receive express permission from the Court of Appeal.
Legal experts opined that Mr Moi’s lawyers are required to seek leave from the Court of Appeal and argue that the matter is of public importance for it to be heard and determined at the court of the last resort.
According to the Constitution, the appellate court must certify the case for a litigant to move to the Supreme Court.
“A certification by the Court of Appeal may be reviewed by the Supreme Court, and either affirmed, varied or overturned,” says Article 163 of the new Constitution which established the highest court in the land.
“Such legal obstacles were erected in a bid to block litigants from moving to the Supreme Court on matters that have been determined by the Court of Appeal,” said lawyer Allen Gichuhi, an experienced counsel on civil matters relating to land disputes.
Supreme Court was established more or less to hear and determine disputes relating to the elections of the office of the President.
However, it has jurisdiction to entertain other cases but only after they have been certified by the Court of Appeal or its own motion.
The principal of Moi High School Kabarak, Henry Kiplagat said in statement that the school had instructed its lawyers to proceed and file an appeal at the Supreme Court.
The judges also ordered Mr Moi to meet the costs of the suit against Mr Malcolm Bell who sued him for allegedly trespassing on his land.
Justice Muga Apondi had in 2006 allowed the school to continue occupying the land claimed by Mr Malcolm Bell, saying that it had acquired a title deed by adverse possession. Mr Bell sued the former president for allegedly trespassing on his land but lost in the High Court. He filed an appeal in 2007.
Mr Kiplagat said the disputed piece of land was right opposite the land on which Moi High School, Kabarak University and Moi Primary are erected and there is no state-of-art facilities that have been build on the property.
He argues that since 1980s when late Bell’s father, Ginger Bell, donated the land to the school “the same has always been used for farming activities.”
The judges observed that Ginger Bell had given the land to the former President on the promise that Mr Moi would drill a borehole for him, construct a cattle dip and connect electricity to his farm.