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Court stops squatters from taking over Mark Too's land

KENYA
By Paul O Ogemba | February 21st 2017

The Court of Appeal has barred a group of squatters in Eldoret from taking over land owned registered under the late Mark Too.

Judges Daniel Musinga, Gatembu Kairu and Agnes Murgor suspended the Environment and Land Court's decision allowing members of Sirikwa Squatters Group to take possession of the 25,000 acres until May, when they will rule on the appeal.

The appellate court's decision saved Eldoret International Airport, Moi University's school of law and several premises located on the disputed land whose mother title deed originally owned by Mr Too was nullified by the Environment and Land Court.

One of Mr Too's companies, Fanikiwa Ltd, filed the appeal through lawyer Tom Ojienda, arguing that Justice Anthony Ombwayo made a mistake in revoking the title without giving parties who had bought pieces of the land a chance to be heard.

"The judge failed to appreciate that the land had been sub-divided and sold to third parties who are going to be affected if the squatters are allowed to take over. He did not give the third parties a chance to defend themselves contrary to the rules of natural justice," Prof Ojienda said.

Over 10,000 titles were given to different institutions, companies and individuals, he said.

Ojienda argued that although Too, a former nominated MP, was a director of Fanikiwa Ltd, the squatters chose to sue him in his individual capacity without enjoining the company.

He questioned the authenticity of the squatters group, saying it was not possible for them to register in 2006 and claim they were given the land before 1998, when Too acquired the title.

"Fourteen years have elapsed since then, so one wonders where they were all that time only for them to file a case in 2012," Ojienda argued.

But the squatters, through lawyer William Arusei, opposed the appeal, arguing that all parties who had bought part of the land were aware of the court case but had chosen not to file their pleadings.

Mr Arusei submitted that the title had already been declared illegal and that the squatters had moved to the land to claim what was legally theirs.

"They knew about the case but chose to sleep on their rights. Even Mr Too and his wife were always present in court and should have informed the companies they sold the land to," Arusei argued.

"But even those sub-divisions were declared illegal so they have nothing to appeal against."

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