*Katiba Institute offered Legal and technical support to the Samburu Community in this case and will be assisting the Community in their appeal against this decision*
The environmental court has dismissed a case in which retired President Daniel Moi was sued by Samburu community for transferring 17,105 acres of their land in Laikipia North to the Kenya Wildlife Service.
Lady Justice Lucy Waithaka said the community had never owned the land and that it did not prove their claim of adverse possession.
The case was filed by 248 members of the Community through lawyer Suiyanka Lempaa, contending that their occupation and possession of the suit property has been without force and none secretive for more than 12 years.
The lawyer said the community relies on the land for their lives, livelihoods, sustenance and survival.
They named the Africa Wildlife Foundation (AWF), the former president and Kenya Wildlife Service (KWS) as respondents in the matter, respectively.
The case shot up to public knowledge last year after the court ordered the community to hire choppers to transport judicial officers and lawyers representing involved parties in the case to visit the land.
The community was unable to make the air travel arrangements due to financial constraints and the parties never visited the site despite insistence by the community.
“The community members have peaceably, openly, an interruptedly and enjoyed facilities like boreholes, dams, water courses, rivers and stock routes in the suit property for more than 20 years,” Mr Lempaa told the court.
He said the community had been living on the land since the 1980s before Mr Moi took it in 1997 in circumstances they didn’t understand.
Mr Lempaa said the land was transferred to the KWS and AWF by the former head of state and converted to Laikipia National Park.
He added that their ancestors were pushed by the European settlers northwards and southwards to create room for settlement after the aglo-maasai agreements of 1904 and 1911.
Charles Tanui, who was the manager of the land known as Kabarak Farm, between 2004 and 2008 said Mr Moi used the land for cattle keeping and that there were no squatters living in it.
He said the Samburu community invaded the land after Mr Moi sold it to AWF in 2008.
Former chief executive officer of Olpejeta conservancy Richard Highnoor appeared as a defence witness in the matter.
He told the court that Mr Moi bought the land in 1997 from the conservancy which was fenced and paddocked.
He added that there were occasional illegal grazing and they engaged the local community to discuss social benefits due to the community to sustain wildlife conservancy.
Mr Highnoor informed the court that the Samburu community are neighbours of the disputed land and they did not occupy it.
The former chairman of parliamentary committee on administration and national security Fred Kapondi, in his evidence, said his committee visited the land following threats to employees by individuals living nearby.
He said some individuals had incited the community to invade the farm.
However, lawyer Lempaaa said the community occasionally left the land in search of pasture for their livestock.
Mr Lempaa said the community had stayed in the land for over 35 years.
He argued that Mr Moi sought influence of parliament to make adverse findings in a parliamentary report including that there were no squatters therein.
Yash Pal Ghai, who was listed as an interested party in the suit, said the case was on historical injustice as he termed the disputed property as community land.
Mr Ghai argued that great injustices were committed during colonization through seizure of huge tracks of land belonging to communities.
He faulted the National Land Commission for failing to discharge its mandate of investigating and redressing historical injustices in the country.
He urged the court not to shut its eyes on injustices meted on the Samburu community
However, the found that Mr Moi was approached by the AWF to sell the land to it for purposes of conservation because it is a crucial wildlife migratory corridor.
The court found that the land was previously registered in favour of Ol Pejeta and had been involved in 19 transactions between 1962 and 2011.
Justice Waithaka further established that the community did not make Ol Pejeta a party in the suit yet the claim of adverse possession was made against it.
The judge said KWS, AWF and Mr Moi had been in control of the disputed land for all the material time.
“The evidence on record shows that the respondents used the suit property to secure their financial obligations to financial institutions besides carrying out various development projects thereon,” the court said.
The judge added that the community had a choice to file a constitutional petition and urge their case based on the allegations of breaches of their constitutional rights.
“I hasten to point out that this court is not the right forum to litigate issues concerning the alleged historical injustices in the first instant,” said Justice Waithaka.
The community now faces imminent eviction from the land.
Lawyer Lempaa said the community will appeal the court’s decision terming it as harsh.
By JOSEPH WANGUI, Daily Nation http://www.nation.co.ke/
This article originally appeared in the Daily Nation on 28th June 2017. We do not claim any proprietary rights to the content.