Moi takes battle for Kabarak farm to the Supreme Court

• Justice Waki’s absence left judges Koome and Okwengu to deliver the decision that directed Mr Moi to surrender 100-acre farm in Kabarak within six months.
• The law requires the three judges in a Bench to decide an appeals case before them, but on the principle that if two judges concur in their findings and one dissents, the majority’s decision is deemed to be binding.
• Legal experts, however, said that Mr Moi’s grounds for the appeal may trigger an argument as to whether the two judges acted within the law to deliver the ruling without Mr Waki’s input.
• The Court of Appeal ruled that since Mr Moi had taken the land with the senior Bell’s agreement in exchange for connecting his neighbour to electricity, drill for him a bore hole or construct for him a cattle dip but never delivered his part of the deal, the land must revert to the original owner.
• Mr Moi wants the Supreme Court to quash the appeal court’s ruling that gave him 60 days to relinquish ownership of the land to a rancher Malcom Bell.

Former president Daniel arap Moi has taken the fight for the 100-acre farm in Nakuru to the highest court in the land, citing as grounds of appeal the absence of one judge from the Bench that delivered the verdict against him early this month.

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Mr Moi argues in papers filed with the Registrar of the High Court that whereas a three-judge Bench of Martha Koome, Hannah Okwengu and Philip Waki heard the appeal on February 21, the latter’s decision was not available when the ruling was delivered in Nakuru on August 9.

“Judgement of the Court of Appeal as delivered without Justice Waki’s input is a nullity,” Mr Moi says in a sworn affidavit.

Through his lawyers Kiplenge and Kurgat Advocates, the retired president says the appeal was heard on February 21 and that Justice Waki was in the country thereafter for some time and should have written his judgment before going on a sabbatical leave in North Africa.

Also read: Moi appeal against eviction runs into hurdles

Justice Waki’s absence left judges Koome and Okwengu to deliver the decision that directed Mr Moi to surrender 100-acre farm in Kabarak within six months.

The law requires the three judges in a Bench to decide an appeals case before them, but on the principle that if two judges concur in their findings and one dissents, the majority’s decision is deemed to be binding.

Legal experts, however, said that Mr Moi’s grounds for the appeal may trigger an argument as to whether the two judges acted within the law to deliver the ruling without Mr Waki’s input.

Mr Moi wants the Supreme Court to quash the appeal court’s ruling that gave him 60 days to relinquish ownership of the land to a rancher Malcom Bell.

The application is seeking the Court of Appeal’s leave to formally appeal the August 9 decision in the court of last resort. Seeking urgent treatment of his application, Mr Moi says he is apprehensive that Mr Bell’s advocates may move to the High Court to have the dispute listed for mention “so that the original land documents are released to the farmer.”

“This is a clear intention of Mr Bell’s desire to deal with the suit property in a manner that will be prejudicial to the school’s interest,” Mr Moi argues, adding that it would be imperative for the court to preserve the property until the case is heard and concluded.

Mr Moi further argues that if the court declined to intervene, Mr Bell may move in and dispose of the land in a manner that will prejudice his appeal and interest in a matter of general public importance.

The retired president’s lawyers say that there has been a substantial miscarriage of justice in the manner the Court of Appeal dealt with the case, leading to Moi High School Kabarak losing to Mr Bell land it has owned since 1981.

Justice Muga Apondi had in 2006 allowed the school to continue occupying the land, on grounds that it had acquired a title deed by adverse possession. Mr Bell sued the former president for trespassing on his land, but lost in the High Court.