A private university and more than 1,200 individuals could lose their land after the Supreme Court denied them a chance to join a dispute between the family of Mark Too and a group of squatters.
Judges Philomena Mwilu, Mohamed Ibrahim, Njoki Ndungu, Isaac Lenaola and William Ouko ruled that the application by the parties was coming too late in the day.
They argued that it came when the dispute between the late Too’s family and Sirikwa Squatters Group over the 25,000-acre had reached a crucial stage.
“They have not met the threshold for admission as interested parties as they have all failed to establish the prejudice they will suffer. The appeal has numerous interested parties whose cause revolves around what all the interested parties seek to raise,” they ruled.
Among those whose application were declined were University of Eastern Africa- Baraton, Law Society of Kenya, Kibwari PLC Ltd and 1,246 individuals who claimed they had bought a portion of the disputed land and will be affected should the squatters be allowed to take possession.
According to the Appellate Court, the institutions and the individuals had a chance to join the dispute when it was still before the Environment and Land Court and the Court of Appeal but they slept on their rights to be heard.
The university and the individuals had claimed that they were not aware of the suit and was not a party to the proceedings before the Court of Appeal until the court ordered that their titles which are part of the disputed land be cancelled.
The Apex Court however ruled that there was undue delay by the parties since the Court of Appeal gave them opportunity in 2017 when the dispute was advertised in the newspapers for all interested parties to join.
“They contend that their titles were cancelled as a consequence of the Court of Appeal’s judgment and will suffer economic loses. However, they have not been diligent in pursuing their interest with the undue delay of attempting to join the case,” ruled the judges.
They affirmed that only parties who participated in the case at the Court of Appeal will proceed with the hearing of the case where Too’s family through his company Fanikiwa Limited are challenging a decision to allow the squatters take possession of the 25,000-acre land.
The dispute dates back to 2012 when Sirikwa Squatters Group sued the late Too for illegally taking over their land.
The Environment and Land Court then ruled in their favour, cancelled Too’s title and ordered that the squatters be given the land. The decision was affirmed by the Court of Appeal after they dismissed Fanikiwa Limited’s appeal.
At the same time, the judges declined an application by Too’s widow Sophia Chemegen to adduce additional evidence in the case.
Among the evidence she sought to introduce was an alleged forged letter by the squatters purporting that the late Too had agreed to surrender to the land in November 2000.
Stay informed. Subscribe to our newsletter
“We are unconvinced that the additional evidence sought to be adduced is not being utilized for the purpose of removing lacunae and filling gaps in evidence. As such, it is our considered view that the application is an attempt by the applicant to make a fresh case in this petition,” ruled the judges.
The judges however declined to strike out the widow’s affidavit in support of the family’s appeal against the Court of Appeal decision.