The families of former President Daniel arap Moi and billionaire Jaswant Rai have obtained temporary orders from the Supreme Court stopping an Eldoret family from demanding more than Sh1 billion for land allegedly grabbed in 1983.
A bench of five judges led by Deputy Chief Justice Philomena Mwilu suspended a decision directing the Moi family and Mr Rai to pay the family of ex-chief Noah Chelugui for the 53-acre parcel of land.
Environment and Land court judge Anthony Ombwayo had in 2019 ruled that the former President, who died in 2020, irregularly took over the land belonging to Mr Chelugui in 1983 and later sold it to Rai Plywood, a firm owned by Mr Rai.
The judge ordered them to pay the family Sh1.06 billion plus interest. Attempts by the executor of Mr Moi’s will, senior counsel Zehrabanu Janmohamed, to overturn the decision was dismissed by the Court of Appeal in July.
“Having determined that we have jurisdiction, we also find that the appellant has demonstrated that the appeal is arguable and that unless a stay is granted, it will be rendered nugatory,” Justices Mwilu, Mohamed Ibrahim, Smokin Wanjala, Isaac Lenaola and William Ouko said.
The judges rejected a plea by the Chelugui family to have the Mois directed to deposit the amount in court as security.
They said the executor of the estate, Ms Janmohamed, is a party in the case and is under obligation to among other things collect and preserve the estate for purposes of satisfying any decision made by the court.
Mr Moi died on February 4, 2020, and the distribution of his estate has been dogged by several cases brought against him.
Nathaniel Langat claimed that the land on which the family of Chelugui is claiming belonged to him but his appeal was dismissed because he was not a party in the case before the High Court.
In the 2019 decision, Justice Ombwayo directed the Mois and Mr Rai to compensate the Chelugui family at the current market value.
The judge had dismissed Mr Moi’s assertion that he owned the land saying there was no evidence that he was the registered owner.
Mr Rai defended himself saying he purchased the land from Mr Moi in 2007 after a search and confirming that it belonged to the former President.
Mr Chelugui’s widow Susan and son David sued Mr Moi, Rai Plywood and land officials in Eldoret, arguing the land was forcibly taken from the ex-chief, who died in 2005, on September 21, 1983.
Mr Moi’s family had faulted Justice Ombwayo’s decision saying he was wrong in using the 2010 Constitution to determine the suit instead of the set of laws in place at the time.
But the Court of Appeal ruled that Article 40 of the Constitution, which provides for the right to protection of property, can be applied retrospectively and hence can be used to determine disputes that arose before the promulgation of the 2010 laws.
“With guidance from the above provision on the manner in which the Constitution should be construed, we think that Article 40 of the Constitution is one of those constitutional provisions that is not limited in its application. It can, and must in appropriate cases, apply retrospectively.
“It seems quite clear to us that the right to property is ring-fenced by the Constitution and courts must be vigilant to ensure that the State and those who wield State power do not by might negate the right,” the Court of Appeal judges ruled.