How land feuds have proved a hot potato for the State

Land is both a historical and emotive subject in Kenya. Courts have held that the right to property is a constitutional and human right and no person can be deprived of property except in accordance with the provisions of the Constitution or statutes.

The condition precedent to taking away anyone's property is that the authority must ensure compliance with the Constitution and statutory provisions.

A number of persons have over the years moved to court and successfully secured hefty awards by proving that they were deprived of what was rightfully theirs, with the assistance of government officials.

And in some of these cases, the taxpayers have had to foot the damages after courts found that government officials were either complicit or facilitated the illegalities. On others, however, taxpayers were spared paying the huge compensation after the Attorney-General successfully pursued appeals.

Several of these precedent setting cases have arisen from petitions filed at the Environment and Land Court in Eldoret and handled by Justice Anthony Ombwayo.

In 2018, the judge directed the government to pay the families of Kiptot arap Sitienei and Joseph arap Korir Sh4.5 billion after they were illegally evicted from their land in Langas Estate, Eldoret decades ago.

The families of the men who have since died, claimed that after their eviction in 1968, the defunct Eldoret Municipal Council and its successor continued to collect levies and even approved settlement to illegal settlers. The two families moved to court, seeking compensation of Sh7.7 billion. The judge, however, said Sh4.5 billion should be adequate.

“However, the figure arrived at is on the higher side and I do award the petitioners compensation of Sh4,500,000,000, plus interest at courts rates accruing from the date of filling the suit to the date of payment. The money should be paid from the consolidated fund as the 1st (Uasin Gishu County) and 2nd (National Land Commission) respondents are successors in their offices,” the judge said.

According to the two families, they purchased the 1,050- acre parcel in 1964 and applied for and obtained a loan from Kenya Land and Agricultural Bank and Agricultural Finance Company. They repaid the loan until October 2001, when the title was discharged.

They told the court that they purchased the land for Sh161,920 from Gordon Edward Goby and Lionel Roy Nesfield Strange, who were the initial registered owners. But they were evicted in 1968 by a group of people.

Later, the Municipal Council of Eldoret and the district physical planning department applied to the Ministry of Lands, for change of user, as they sought to establish an urban settlement.

Hundreds of third parties have since bought varying sizes of plots, and the suit land developed into what is now known the sprawling modern day Langas Estate, located just opposite Eldoret Polytechnic along Kisumu Road.

The families accused the dwellers of trespass. The county had also built two schools, a health centre and industrial facilities as well as roads.

The schools include Langas Primary, Kapkenduywa Primary School, Langas Health Centre and Langas Police Station. There were also plans to start two secondary schools, Langas municipal market and a chief's camp.

A few years ago, the defunct council obtained a loan from the World Bank to upgrade the estate and repayment was to be effected through collection of rates and other charges.

Among the settlers were Mr Kiprono arap Otieno, who said in 1964, the late Kiptot and the late arap Korir together with him and 56 others, decided to collect funds for the purposes of purchasing land. But the two shortchanged them and transferred the land to themselves. Mr Otieno, then together with other members of the group evicted the two and continued to pay the loan.

But Justice Omwabyo in his ruling disagreed, saying they did not produce any document to prove ownership.

“The same applies to the interested parties who bought land from ‘owners’ who had no title. A trespasser cannot transfer any proprietorship rights as he has none. All documents of purported sale of property to interested parties by the alleged plot owners who were in essence trespassers are all nullities,” he said.

The judge, however, spared hundreds of third parties, who purchased the land, from evection saying it would cause a lot of human suffering “and will affect the interested parties’ economic and social rights as the interested parties have constructed houses, business premises, churches, schools, hospitals, markets, roads and other related infrastructures.”

In 2016, justice Omwbayo awarded several other families about Sh8 billion as compensation after their land was allegedly seized in Eldoret to establish an urban settlement and government institutions among them Kenya Pipeline Corporation.

The families of Thomas Kipkogei arap Yator and William arap Leting had accused the government of subdividing their land and in the process took from them 1,150 acres.

The land seized was used to establish a police rifle range (17.65 hectares), Kenya Ports Authority for establishment of inland container depot, King’ong’o Estate which was registered in government’s name and another parcel set aside for KPC.

Justice Ombwayo awarded the estate of Mr Yator Sh3.7 billion for loss of 546 acres while that of Arap Leting was given Sh4.1 billion for loss of 604 acres. He further awarded the two families Sh500 million for loss of profits, for not using the land for 30 years.

The two families claimed that they were disenfranchised through a process that saw them lose their legitimately owned land and successive governments had either been complicit in the disenfranchisement or failed to create a conducive environment, for them to claim their rights.

The government, however, appealed against the decision and a bench of three judges overturned the decision in 2018 and dismissed the case.

According to justices Earstus Githinji, Jamila Mohamed and the late Otieno Odek, the onus was on the families to prove that the public officials did not follow all the procedures when they subdivided the land.

They said some letters produced in court showed that the original five joint owners of the land had knowledge of the sub-divisions and actively participated in sub-division and re-subdivision of the property and subsequently sold various portions to third parties.

“Our re-evaluation of the evidence leads us to conclude, that on balance of probabilities, the petitioners did not prove and establish that the suit property was illegally, un-procedurally and unlawfully seized by the appellants,” the judges said.

Last year, justice Anthony Ombwayo, sitting in Eldoret directed former President Daniel arap Moi and Rai Ply Woods to pay the estate of Noah Chelugui Sh1.06 billion for illegally taking over his parcel of land in 1983.

The judge found that Chelugi’s family was illegally dispossessed of his 53-acre parcel in Eldoret town. Moi later sold the land to Rai Ply and was used to cultivate wheat on the farm until 2007 when it was subdivided and sold to third parties.

“Though cancellation of title is an available remedy, the appropriate remedy is compensation in terms of the value of the suit property without improvements as the respondents have heavily invested on the suit land and have been in possession for a long period of time,” the judge said.

He, however, rejected a plea by Susan Chelugui and David, the administrators of the estate of Mr Chelugui, for compensation of Sh240 million for loss of profits over the years.

The family argued that although there was a procedure for sale and transfer of land, in his case, another person, through deception or trickery obtained his original title to facilitate a sale, but no sale took place.

The court heard that in the end, his land changed hands in circumstances which have never been explained. And in the process, they received a meagre Sh70,000, which was neither purchase price nor any other consideration for the purchase of land.

The family said they made visits to government offices to seek redress but all in vain as the "door was permanently locked," leaving them with no alternative but to turn to the courts.

Rai in reply through Philip Varghese said the company was the duly registered proprietor of the land having purchased it from Mr Moi for valuable consideration without notice of any defect in the title.

The court noted that the land was acquired by a group of five elders among them Mr Chelugui in 1965 from Brecht Jacobus Hendrick Engel. The members were known as N. K. Langat & Partners and it was not true that the property was government land.

And in 2012, Justice Roseline Nambuye, then a High Court judge, awarded Orbit Chemicals Sh6 billion as compensation after placing a caveat on a 95-acre parcel of land near Jomo Kenyatta International Airport. The amount was to accrue interest at 14 percent per annum.

The company moved to court in 2004, seeking back the land. This was after it accused the Registrar of Titles of placing a caveat on the land in September, 1987.

The land had been sold to the company by National Bank of Kenya (NBK). The company later sought exemptions from the application of the Land Control Act. Although initially granted, it was later waived.

NBK had argued that there was no waiver of the application of the Land Control Act by the President under Section 24 of the Land Control Act. It was on this basis that a caveat was placed on the land.

Orbit Chemicals argued that the caveat was tantamount to expropriation of its rights as the resultant effect was that squatters invaded the suit land. Justice Jackton Ojwang, then a High Court judge, struck out the defence by the government.

However, the government proposed that instead of evicting hundreds of people who had already settled on the land, they could negotiate an out-of-court settlement to compensate the company. After negotiation, the parties agreed a figure of Sh6 billion although the government had initially proposed a payment of Sh851 million.

In the appeal, the government through state counsel Kamau Waigi admitted placing the caveat but denied causing squatters to invade and occupy the land.

He told the court that it was wrong for Justice Nambuye to impose the amount yet there was no valid consent amounting to a contract. Mr Waigi maintained that the Ministry of Lands and Treasury denied the consent.

Orbit Chemicals through Oseko & Ouma Company advocates maintained that once a consent has been entered into, then it was binding on all the parties.

The government, however, said an economist, J.P.G. Tuamwari, who had proposed the figure was not authorised, and hence his proposal was not binding. The Ministry of Lands had claimed that it would have been absurd to pay Sh6 billion, yet its allocation then was about Sh2 billion.

PUBLIC INTEREST

And in March last year, taxpayers were spared the agony of paying more than Sh20 billion to Orbit Chemicals, after the Court of Appeal overturned the decision.

Three judges of the appellate court said the move by the High Court judge to impose the amount to the government was clearly against public interest and financial probity “and is against public policy which a court should neither entertain nor allow”.

Justices Erastus Githinji, Fatuma Sichale and Sankale ole Kantai said in the ruling that whereas it was not disputed that the Registrar had placed a caveat, it was not the same as saying that the government encouraged squatters to move onto the land.

“If anything, the obligation to ward off squatters never shifted to the government but remained the responsibility of the respondent (the company). We also note that the respondent's “loss of use” was not based on failure to transfer or charge the title but on loss of use of land. Who prevented the respondent from using the land?” the judges posed.

They said in their view without the authority of the accounting officer of the respective ministry (Ministry of Lands), the report of Mr Tuamwari was not binding on the government.