Blow to Sirikwa squatters after court reverses Too land ruling

Sirikwa squatters' chairman Benjamin Rono and advocate William Arusei during a past forum in Eldoret, Uasin Gishu County. [Peter Ochieng, Standard]

For over a decade, a group of Sirikwa squatters have waged a tenacious court battle against the family of Kanu-era Member of Parliament Mark Too (deceased) over 25,000 acres of land located in Kapseret, Uasin Gishu County.

But yesterday, the Supreme Court, in a decisive blow, ruled in favour of Too's family and several landowners while reversing earlier judgments rendered at the Environment and Lands Court and the Court of Appeal.

The court has also barred the members of the Sirikwa squatters group permanently from accessing or interfering with the prime land located in Kapsaret near the Eldoret International Airport.

In the verdict, the bench led by Chief Justice Martha Koome held that the Sirikwa squatters did not have a legitimate expectation to acquire and be allocated the suit parcels.

According to the apex court, the members of the Sirikwa group were not even squatters on the suit parcels. The court also ruled that the transfer by Lonrho Agribusiness to Fanikiwa Limited and several landowners was done legally and procedurally, overturning the decision by the lower courts.

"The documentary evidence before the Court, shows irrefutably that as of the date of Sirikwa's application and on October 28, 1998, when former President Moi endorsed the subject application with the words 'Approved', the suit parcels were registered as private property in the name of Lonrho Agribusiness," reads the judgment.

The court argued that the suit parcels, being private properties at the time, could only be alienated or transferred by the registered owner, Lonrho Agribusiness, rather than by the President under the Government Land Act (GLA).

The ruling was delivered by the Chief Justice alongside six other judges including Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko.

"The 1st respondent herein, Sirikwa Squatters Group, its agents, members, servants, employees and/or representatives are permanently restrained from entering, taking possession of, and in any other manner interfering with Fanikiwa's (the 1st appellant) quiet possession of the suit properties," the court ordered.

The squatters had won two cases against the Too family, including at the Court of Appeal, but the Too family led by his widows Mary and Sophie moved to the Supreme Court.

The Supreme Court Judges also claimed that the Too family was not accorded a fair hearing in the appeal case that upheld the High Court's ruling in favour of the squatters group.

"In the circumstances of this case therefore, we are not convinced that it was prudent and judicious, considering the highly contentious nature of the claims and circumstances of each of the numerous parties involved, to determine this matter by affidavit evidence only," the Judges noted.

In the Court of Appeal case, Mark Too had been found guilty of fraud in the transfer of the disputed land to himself. The court noted in its judgement in 2022 that the transaction relating to the 27 hectares was tainted by fraud and misrepresentation and was "completely unworthy of protection by the court".

However, the Supreme Court Judges said the appellate court adjudged Mr Too guilty of fraud without affording him a hearing. The Judges said the particulars of fraud were not proved to the required standard and that concrete evidence to prove the subject allegations to the required degree were not tabled.

"It is trite law that fraud which, depending on the circumstances is recognized as a criminal offence, must be pleaded and strictly proved. In addition, although the standard of proof of fraud in civil matters is not proof beyond a reasonable doubt, it is higher than proof on a balance of probabilities as required in other civil claims," the Judges stated.

The squatters group has been embroiled in a land ownership tussle with the family of the late Mark Too since 2007. The squatters went to court in 2007 and sued the various government departments, Lonrho Agribusiness East Africa Company, Mark Too, David Korir and others for allegedly grabbing their land.

Justice Anthony Ombwayo in 2017 ruled that the squatters be allocated the land. He further directed that Mr Too's family retain not less than 67.5 acres from the disputed 25,000 acres.

According to the squatters, the respondents conspired to hive off the 25,000 acres in 12 parcels with different acreages they claimed were allocated to them by former President Daniel Moi in 1998, through a presidential decree.