Transport firm Eldoret Express Limited has secured a court’s approval to have police accompany auctioneers as they evict more than 1,000 squatters at Tawai farm in Trans Nzoia County.
The bus company had petitioned the court seeking enforcement of a Court of Appeal judgment, dated November 28, 2019, that declared the firm the legal owner of the 640-acre land.
Justice Samuel Kibunja allowed the company's request for an order directing the Trans Nzoia’s county commissioner, the county commander, Kiminini sub-county officer commanding police division (OCPD) and the Kiminini Police Station boss (OCS) to accord Seventy-Seven Auctioneers police to maintain law, peace and order during the execution of the eviction order.
The eviction will mark the end of a 13-year court dispute for the property that lies South West of Kitale Town at Kiungani.
The director of Eldoret Express, Joseph Ng’ang’a Thungu, told court that after winning the court battle, the firm instructed Seventy-Seven Auctioneers to carry out the evictions but they would need police protection to avoid chaos and skirmishes that may endanger lives.
The judge noted that attempts by the squatters, through their land buying company Tawai Ltd, to have the eviction suspended had been rejected by the Supreme Court in March 2021 after the judges found there was no reason to allow a second appeal and that there was no any significant question of law that requires the further input of the apex court.
Justice Kibunja said the decision of the Supreme Court confirmed the bus company as the owner of the land, allowing it to take possession.
According to the firm, Tawai through its members and shareholders took advantage of the tensions surrounding the disputed 2007 presidential election to invade the land, prompting Eldoret Express to sue seeking to be declared the owner in 2008.
“As it is evident from the affidavit evidence presented by both sides that the Defendant (Tawai) has a sizeable number of people on the suit property, I agree with the Plaintiff (Eldoret Express) that it would be desirable to have the law enforcement agencies in the County to be involved in the eviction exercise, through the provision of security, and overseeing of the plaintiff taking possession of the suit property, so as to ensure law and order is maintained by all,” said the judge.
At the centre of the land dispute was two title deeds issued for the same piece of land - one for Tawai Ltd and the other for Eldoret Express.
The land was initially part of the larger block measuring 764 acres that was owned by George Alexander Sinclair during the colonial era.
The company said it bought the land from Kaitet Tea Estates at a cost of Sh40 million in a transaction that started in 2000 and was completed the following year.
On their side, Tawai said they were the registered owners of the land at all material times since 1976.
Tawai said it bought the suit land in 1974 and took possession in October the same year. It then took a loan from Kenya National Capital Corporation (KNCC) bank in 1981 and used the title as security. Upon clearing payments, it got the title back in September 2008.
However, the Court of Appeal noted that Tawai defaulted the loan and the bank in exercise of its statutory power sub-divided the land and sold it.
Kaitet, a company associated with former governor of the Central Bank Eric Kotut, purchased the land from the bank at a cost of Sh7.1 million and a transfer was done on July 17, 1987. Kaitet later sold it to the bus company.
“That evidence of transfer by private treaty in exercise of the chargee’s (bank) power of sale, which was then duly registered, passed a good title to Kaitet,” the appellate judges said.
The court noted that there was nothing on the record to show or suggest, less still prove, that there was any illegality, fraud or misrepresentation in the creation of the title held by Kaitet.
The judges held that Tawai's efforts to recover the land from Kaitet were futile since the claim was filed in May 2011, 24 years after Kaitet’s registration. The law sets a 12-year limitation for claims for the recovery of land.