2 firms join colonial land ownership row


Del Monte shop in Thika. FILE PHOTO | NMG

Two multinational agricultural firms have joined a case that is challenging sections of land laws which enabled Kenyans to claim parcels of lands taken by colonial government and given to foreign companies.

Kakuzi PLC and Mabroukie Tea and Coffee Estates Ltd have received High Court’s nod to join the case that is pending determination before a three-judge bench at the Environment and Lands Court in Malindi.

Justice Jacqueline Kamau allowed request by the two firms to have their cases, which were filed in Nairobi, to be transferred to Malindi for consolidation with a petition lodged by fruit processor Del Monte Kenya Ltd.

The judge found that the cases in Nairobi and the case in Malindi are similar as they are dealing with the question of constitutionality of Section 15 of the National Land Commission (NLC) Act.

The three firms -Kakuzi PLC, Mabroukie and Del Monte- will now jointly fight the section of the law as it threatens their continued occupation of their lands over claims of historical injustice. The firms want Section 15 of the NLC Act quashed.

The implication of the section of the Act is that the multinational firms are likely to lose ownership of their huge tracts of land which have been subject of controversy and dispute for many years.

The disputed Section 15 of the NLC Act was in operation for five years commencing on May 2, 2012 to May 1, 2017. During the five-year period dozens of petitions by various groups were lodged at the NLC reclaiming lands occupied by the agricultural firms. But the exercise of recovery of the properties halted after the firms moved to court.

The said section of the Act provided criteria under which claimants of historical land injustices can reclaim the land.

It provided that the grievance was required to meet criteria such as establishing that acquisition of the land resulted in the displacement of persons from their habitual place of residence.

Another criteria was that the land was taken between June 15, 1895 when Kenya became a protectorate under the British East African Protectorate and August 27, 2010 when a new Constitution was promulgated.

Further, that the claimant was either the proprietor or occupant of the land upon which the claim is based or he/she did not at any time surrender or renounce his right to the land in question

The claimant was also supposed to demonstrate that the claim had not been sufficiently resolved and subsists up to the period specified above (June 15, 1895 to August 27, 2010).

The Act also defined historical land injustice as a grievance which was occasioned by a violation of right in land on the basis of any law, policy, declaration, administrative practice, treaty or agreement.

Further that the act which the claim is based on should be verifiable as having resulted in the displacement of the claimant or another form of historical injustice.

The claimant also had to establish that the claim cannot be addressed through the ordinary court system on the basis that it was illegal at the time the injustice occurred or is time barred.

The Del Mote petition had also been filed in Nairobi and was moved to Malindi for consolidation with another one that was filed by members of Malindi and Mombasa Law Society of Kenya in October 2016 challenging constitutionality of some sections of the land laws.

The lawyers sought a declaration that Sections 38, 47, 48 and 98 of the Land Laws (Amendment) Act 2016 are unconstitutional, null and void.

While urging court to allow their application to transfer their cases from Nairobi to Malindi, Kakuzi PLC and Mabroukie told justice Kamau that the consolidation was important to prevent conflicting decisions on the same legal issues.

They said a piece-meal approach on Section 15 of the NLC Act would be highly detrimental to all parties, who are affected by the said Section of the law and would most likely lead to conflicting decisions on the very same issue.

“I find that the issue of constitutionality of Section 15 of NLC Act raises an important public interest issue, as it appears as if the issue of sanctity of title is no longer guaranteed, hence the same should be seriously considered and dealt with once and for all, rather than dealing with piece-meal litigation on the said Section,” said Justice Kamau.

She added that since the petitions involve an issue on land, which is a sensitive and an emotive, it is important that parties are given a hearing especially where a Section of a statute is challenged in more than one case.

“It is important that the court handling the Malindi Petition do consider the importance of hearing this case and related cases as one matter so as to avoid conflicting decisions being given by different courts,” she said.

Though the application by Mabroukie was not opposed that of Kakuzi met opposition from more than 3600 Murang’a residents under the auspices of Kakuzi Division Development Association.

The 3681 members of the Association contended that transferring the matter to Malindi will be superfluous as the parties will not be heard.

Led by Mr Stephen Kuria Mbugua, the residents said Malindi case has since been closed and is pending judgment.

In 2017 they filed a claim with the NLC to which Kakuzi PLC was invited by the Commission and filed a response to their claim.

The parties went through pre-trial process and the matter was set down for hearing. But Kakuzi PLC moved to court and obtained an order suspending proceedings at the NLC.

But justice Kamau noted that the court had not been informed that the Malindi ELC has delivered its judgment nor has the date for judgment been disclosed.

“I have considered that the petitioner (Kakuzi) urges that there are additional issues that the Malindi Environment and Land Court would need to consider, other than, what has been raised in the petition before it, which in my view can only be dealt with once this matter is before the Malindi Court,” said judge Kamau.