Was the 25,000 acres of land contested by Mark Too's family and Sirikwa squatters group public or private property?
This is the main question the Supreme Court will have to answer to settle a decade-long dispute over a multi-billion-shilling land in Eldoret.
On one hand, Fanikiwa Limited, Mark Too's family, the seller; Lonrho Agribusiness (EA) Ltd, and the government argue that the land was private property and was not open for allocation to the 800 alleged squatters claiming a stake in it. Fanikiwa owns 2,000 acres of the contested property while Too's family owns 66.7 acres.
The appeal filed by Fanikiwa, Mark Too family, and Lonrho against Sirikwa was heard by Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko.
On the other hand, Sirikwa argued on Wednesday that the property was surrendered by Lonrho to the government for their allocation.
Fanikiwa's lawyer Fred Ngatia told the Supreme Court that the firm was never heard and was unfairly sidelined by the Court of Appeal, which found that all those who purchased the land from Lonrho had legitimate titles.
According to him, the second highest court in the land erred by finding that since Mark Too knew about the dispute and had been a director in the firm, by extension, Fanikiwa could not claim that it was not given a chance to argue its case.
The senior lawyer asserted that Fanikiwa is a distinct entity that has a right to sue and be sued while Mark Too was pursuing his own rights as an individual.
He argued that the dalliance between the two could not be used as the pedestal to deny Fanikiwa a day in court.
On the squatters, Ngatia argued that it was unclear whether they were claiming ancestral land or were employees of Lonrho Limited.
He asserted that Fanikiwa bought the land now at the centre of the contest, adding that Lonrho has never disputed that it was not paid.
In addition, he said that Fanikiwa has a land control board consent, a stamp duty, and valid titles as proof of ownership. According to him, Fanikiwa and Lonrho sealed the sale in 2005, approximately seven years before Sirikwa filed its case.
"There were no squatters on these parcels of lands and this applies to all other purchasers. That land was being purchased and the registered owner has title to it. All the due diligence done showed that the titles were surrendered and freehold titles were issued as Registered Land Act (RLA). The Court of Appeal held that the titles by the others who had bought the land were valid and it was unfair to hold that another title issued under the same process is invalid," argued Ngatia.
Meanwhile, Mark Too's family lawyer Tom Ojienda argued that it was unfair for the Court of Appeal to find that the deceased engaged in fraud without evidence.
Prof Ojienda said that the High Court had absolved the politician as it was clear that he was also an innocent purchaser just like the others.
During the same hearing, Lonrho said that it never surrendered its land to the government for allocation to squatters. According to the firm, the government would not have registered the property under its name if was to be given to the squatters.
The Lands Ministry and Attorney General also supported Fanikiwa and Mark Too's family's argument.
According to the AG, the lower court ignored evidence indicating that the contested property was owned by the government. At the same time, the AG poked holes in the documents produced by the squatters saying that they never explained how they obtained them.
He was of the view that the property includes Eldoret International Airport, which was compulsorily acquired by the government in 1994.
Further, he said, it would have been ironic, illegal, and impossible for the government to buy part of its own property to put up an airport.
It emerged that banks were also affected by the case. The court heard lenders such as Kenya Commercial Bank (KCB) were holding at least 80 titles as security. Others are the National Bank of Kenya, Stanbic, and CBA Bank (now NCBA).
In reply, Sirikwa lawyer William Arusei urged the judges to strike out the appeals. According to him, Sirikwa, Mark Too, and Lonrho never sought clearance from the Court of Appeal before moving to the Supreme Court.
Arusei argued that the trio was re-opening the facts of the case before the wrong forum.
He said that it was clear that Lonrho had surrendered the land to the government for allocation to his clients.
According to him, the AG and the ministry were blowing hot and cold on the issue as they had initially backed the squatters' argument.
According to him, Fanikiwa and Mark Too's titles were obtained illegally. He urged the highest court in the land to uphold the Court of Appeal's verdict.
"You have not been told that the title was acquired legally. Those titles having been obtained in violation of the law, they are illegal and nothing can be sanitized. The appellant is placing their titles on a nullity and I invite you to dismiss the appeals," argued Arusei.
The dispute dates back to 2012. After the hearing, Environment and Land Court judge Anthony Ombwayo in 2017 ruled in favour of the squatters and cancelled the titles held by buyers before directing that the land be given to Sirikwa.
Fanikiwa and others moved to the Court of Appeal lamenting that they were not enjoined in the case. The Court of Appeal in November last year allowed the appeals by all others except for Mark Too and Fanikiwa.
