Squatters win landmark case against Mark Too
By Moses Michira and Silah Koskei | February 9th 2017
A group of over 800 squatters Wednesday won a case against former nominated MP Mark Too involving an estimated 25,000 acres.
The decade-long battle between the Sirikwa Squatters Group and the late politician came to an end when the High Court in Eldoret ruled in favour of the squatters.
The court agreed with the squatters; previously farm hands and labourers at the farm working for a British multinational that once grew wattle trees, that the property belonged to their forefathers before they were kicked out to give way for a plantation.
Mr Too's Maziwa Farm in Kapseret, Eldoret, where he was laid to rest following his death on New Year's eve was, however, spared in the landmark ruling.
The Sirikwa squatters living near the Moi International Airport, Eldoret, went to court in 2007 and sued the various Government departments, Lonrho Agribusiness East Africa Company, Mark Too, David Korir and others for grabbing their land.
High Court judge Anthony Ombwayo Wednesday ruled that the squatters be allocated the land.
"The petitioners have a legitimate expectation to be registered as owners and need to be allocated the parcels of land because the transaction by the respondents was unlawful. The respondents need to abide by the initial decrees and documents from relevant Government authorities and issue title deeds to the applicants," ruled Justice Ombwayo, the eighth judge presiding over the case.
The judge further directed that Mr Too's family retains not less than 67.5 acres from the disputed 25,000 acres.
The court refused to issue stay orders on the land, as requested by Too family, stating that the court could only consider a formal application within seven days.
According to the squatters, the respondents conspired to hive off the 25,000 acres in 12 parcels with different acreages they claimed was allocated to them by former President Daniel Moi in 1998, through a presidential decree.
The matter that commenced as a judicial review issue was moved to Eldoret High Court; close to the physical location of the suit land, from Nairobi.
In 2015, the squatters' lawyer, William Arusei, made an application to have the matter referred to the Supreme Court because it was raising critical constitutional issues and had taken too long for determination yet the applicants remained landless despite having legal allotment letters.
In their application, the petitioners cited Article 165 (4) of the Constitution, reiterating that the matter wasn't an ordinary land dispute but "violated basic human rights of access to land", adding that the manner in which Government land was converted to a private parcel without approval by relevant State institutions raised substantial questions in law.
Mr Arusei observed that the matter had been handled by seven High Court judges without a verdict, making them believe the case could not be handled by a single judge due to its complexity.
Too's lawyer, Richard Kamau, disputed Arusei's argument and stated that the case was ordinary and could not bypass the Court of Appeal to be transferred to the Chief Justice.
Too had in his earlier rejoinder disputed claims by the squatters stating that he bought the vast farm from Lonrho Agri-Business East Africa Ltd and was indeed issued with the necessary title documents by the Lands ministry.
He further stated that he had paid for the land in full and even obtained consent for the legal transfer of the parcel from the Land Control Board, adding that several nominees who were to benefit from the parcel also obtained titles for their portions.
A letter dated July 17, 2007, from the Commissioner of Lands to the Attorney General, presented by Arusei stated that the allocation of the 25,000 acres to Sirikwa Squatters still stood.
John Arusei, one of the squatters, claimed that he had been in the land for over 40 years but had been ejected and their houses demolished after the agricultural investor ended its operations.
"We are happy that God has answered our prayers. We have suffered a lot while seeking for justice over the last decade," said Mr Arusei.
Applicants in the suit argued that the land was State-owned and could be used for purposes including settlement of poor people.
"Public purposes mean among others settlement of squatters, the poor and landless, and other internally displaced persons," the petitioners submitted before court.
An Eldoret-based District Lands Officer identified as RJ Simiyu had in correspondences, dated May 2008, confirmed that status of the suit parcels as public land.
Further, Mr Simiyu had questioned how the lease on the land that was all along owned by the State but leased to East Africa Tanning and Extract Company (EATEC) had been cancelled and given to a new firm.
"We, therefore, submit that the purported conversion of Government leasehold over the suit properties to a freehold were a nullity, null and void ab initio," the petition reads in part.
Among the biggest losers in the Wednesday ruling are the hundreds of buyers who had acquired various parcels from a company owned by the late former assistant minister.
Too, through his firm Lonrho Agribusiness, is reported to have sold several parcels of the plantation extending tens of kilometres in width, touching both Nairobi and Kapsabet roads.
He told the court in responding petitions filed by his lawyer that the land was initially leasehold for 900 years and granted to the plantation company where he was chairman.
Upon the winding up of the firm in 2000, Too surrendered the land in exchange of issuance of freehold title, claiming that he had bought the entire parcel but no consideration was given in the court papers.
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