Landmark ruling that paved way for eviction of 10,000 families

Mombasa; Kenya: On July 19, 2012 a court in Mombasa delivered a landmark ruling in a case that had dragged for two decades.

The ruling by Justice Francis Tuiyot required about 10,000 families living on a 9,000 acre farm in Takaungu, Kilifi County, owned by the Mazrui family to vacate.

The Mazrui dynasty is no doubt a powerful one, controlling huge interests in business in Mombasa and coastal Kenya while bringing its influence to bear on political and religious circles.

Members of the Mazrui family sit on various land rights and human rights agencies in the Coast, raising questions on the formation of such agencies and their actual role in steering debate on land injustices in the region.

By the 2012 ruling, squatter families were to be evicted from homes they had lived in for decades – some close to a century – against the counter-claims of the Mazrui dynasty that has laid centuries-old claim on the land.

Besides the Takaungu land, the Mazrui Land Trust which lodged the case in 1991, also owns other land parcels on the Kenyan coast, claims that have cemented its hegemony in the region earning it both critics and admirers. The land parcels are protected by an Act of Parliament enacted early last century.

The Mazruis claim on the Takaungu land is based on the Mazrui Land Trust Act or cap 289 of 1914. The genesis of their case against the state was an attempt by the Government to repeal this law in 1989 and thereafter settle squatters. The Mazruis went to court in 1991 and after many delays, twists, turns and several judges, Justice Tuiyot finally brought this matter to an end with his July 19 ruling. Applicants in the case, Abdalla Mohamed, Khamis Mohamed, Omar Abdallah Mohamed Suleiman and others sued the Government on behalf of the Mazrui Land Trust Board.

In this ruling, the judge ruled that the repeal and seizure of the land from the Mazruis in 1989 was illegal and unconstitutional. Many lawyers took issue with this ruling, accusing the State of throwing away the case through shoddy preparations and presentations.

And as if to vindicate these critics, the State never appealed the case and today, the Mazruis are said to be seeking orders to evict the squatters.

Justice Tuiyot ruled that the takeover of the land by the Government two decades earlier was a “constitutional violation of the applicants’ fundamental rights to the property” and restored all this land to the Mazruis, sparking fear and anxiety among the landless and squatters.

British treaties

Tuiyot further ruled that all “other lands vested in the said board of trustees for the Mazrui, by the Mazrui Lands Trust Act (Cap) 289) of the Laws of Kenya (now repealed) were also vested in the Mazrui, as lawful proprietors thereof, and to the exclusion of all other persons”.  This meant that the State had no power to alienate or allocate this land or “determine the question of ownership of such land”.

The ramification of the ruling were immediate for thousands of squatters who immediately gathered at chiefs’ and district commissioners’ offices demanding to know whether the government was going to enforce this ruling.

The Mazruis claim on Takaungu can be traced to the pre-colonial period when various Omani/Arab families, including the al Mazrui and al Busaidy clans, feuded over property and influence in Mombasa and the larger Kenyan Coast.

The al Mazrui triumphed in many of these feuds and exerted its rule over Mombasa and other coastal cities in the 1820s after rebelling against the Sultan of Oman that had laid claim to the coastal belt. In 1828, Said Seyyid, the ruler of Oman who had transferred his seat of power to Zanzibar from Muscat, dislodged the Mazruis from Mombasa. The Mazruis transferred their holdings and power to Takaungu, itself a former slave trading and shipment post.

British colonialists found the Mazruis in charge of some parts Kenyan coastal strip and through treaties and agreements with the Mazruis, the British took over the Coastal strip and extended its control to cover Mombasa and 470 kilometres of Kenya’s coastline. Henceforth, the Mazruis would be considered lackeys of the British, often used to weaken or sabotage the Sultan of Zanzibar/Oman’s power on the Kenyan Coast. Critics say that for playing lackey to the British, the Mazruis received favours in kind, including the enactment of the Act.

It is also claimed that henceforth, the Mazrui would play prominent roles in determining or appointing the Chief Kadhi.

Meanwhile, the Trust has laid claim to this vast land parcel on the basis of certificate of title No 409 of April 4, 1914 when the Mazrui Land Trust Board was registered as proprietors of the land containing 9,100 acres and the Act or Cap 289 repealed in 1989.

The attempt to repeal the Act appeared intended to convert all lands vested in the Mazrui Land Trust Board as trust or government land, but this came crushing down with Justice Tuiyot’s ruling.

If the order is effected, the entire Takaungu village with dozens of trading centres, hospitals and schools will be pulled down to pave way for occupation by the Mazrui.

Meanwhile, The Standard on Sunday has learnt that although thousands of squatters were allocated this land, many tycoons from the Coast and upcountry also acquired huge swathes illegally. The poor squatters were settled between 1992 and 1995 and issued with allotment letters but never title deeds.

When the Mazruis first went to court in 1991, they obtained temporary orders restraining the Kilifi District Land Adjudication and Settlement from adjudicating the land. In 1994, a court in Mombasa cited the officer in charge of the office for contempt for allegedly proceeding with land adjudication against an injunction.