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Court quashes NLC decision on land to Ruto

NATIONAL
By Patrick Kibet | November 7th 2021

 

Environment and Lands Court Judge Stephen Kibunja. [Courtesy]

The Environment and Lands Court in Eldoret has quashed a decision by the National Land Commission to clear allocation of prime plots of land in Eldoret to Deputy President William Ruto.

In the case, the defunct Kenya Anti-Corruption Commission (KACC), the predecessor of the Ethics and Anti-Corruption Commission (EACC), in 2008 had sued Ruto alongside Magut Agencies Ltd, Somog Limited and former Commissioner of Lands Wilson Gachanja.

The case centres around parcels of land LR No Eldoret Municipality Block 8/574 – 588 and Block 8/540, which were subdivided from LR No. Eldoret Municipality, Block 8/83, in the heart of Eldoret town.

Magut Agencies Ltd, through its director Josiah Kiprotich Magut, on the October 7 last year filed an application seeking to have the court adopt a 2018 decision by NLC, which purported to give green light to the allocation to Ruto and others.

“The National Land Commission has already made a determination dated April 20, 2018 that has fully resolved the issues raised in the plaintiff’s suit,” Magut told the court.

He had told the court the NLC award was transmitted to the Chief Land Registrar in Uasin Gishu County Government and should be adopted as an order to settle the suit.

However, EACC opposed the application and told the court that the decision by NLC was made on April 20, 2018, nearly a year after the term of the first land commission had lapsed.

EACC further argued that there was no order referring the dispute to NLC and, in addition, the land commission did not have any power to determine issues relating to the validity of the titles.

Justice Stephen Kibunja in his decision said that there was was no directive referring the dispute to NLC for review or arbitration.

“I have taken time to peruse court records, especially the typed proceedings running from April 23, 2008 to May 19, 2020, and I have not seen any order or direction issued by the court referring the dispute in this suit to the Commission for review or arbitration,” Justice Kibunja said.

The parties had, however, been given time on December 15, 2015 to pursue alternate dispute resolution.

He said that the case was filed two years before the promulgation of the Constitution and five years before the enactment of the NLC Act.

“Even though the Commission (NLC) proceedings do not disclose the date the complaint is acted upon was filed, it is clear the hearings took place in or around February 2017, which is about nine years after the filing of this suit in court,” he said.

He said that NLC went ahead to make a determination despite being informed that the dispute was before the court of law.

“The existence of this suit was brought to the attention of the Commission, and it is baffling how it proceeded to hear and purport to determine the dispute in the absence of any specific order by the court referring the matter to it,” he said.

Justice Kibunja held that NLC decision to hear the case without a verifiable court order contravened the provision of the Civil Procedure Act. “The Commission had no powers to oust the jurisdiction of this court that are derived from Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011,” he said.

He further noted that the NLC powers to review grants or disposition of public land to establish legality had expired by the time the decision was made.

“The said report having been made by the Commission without jurisdiction is null and void, and hence a nullity ab initio (to be treated as invalid from the outset),” Kibunja ruled.

He raised concern over the delay of the case which was filed on April 8, 2008 but has not proceeded to a full hearing.

“This court finds that it is unfortunate that the plaintiff took approximately 12 years to file the application to amend its plaint, but in view of the fact that the matter has never progressed to hearing of the main suit, I find that no prejudice will be occasioned upon the opposing parties,” he ruled.

He said there was no evidence produced in court to prove how consolidation of the more than 10 cases would prejudice the defendants.

EACC was given 14 days to file and serve amended plaint. 

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