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The family of former politician Mark Too has lost a second-round battle against a group of 800 squatters over a multi-billion properties in Eldoret.
In a verdict that is a major indictment to the former nominated MP, in his death, the Court of Appeal has found that he had hatched a plot to swindle Sirikwa Squatters Group a 25,000 acres property.
The High Court had given Too's family at least 66.7 acres out of the contested land.
However, Court of Appeal judges Patrick Kiage, Kathurima M'inoti, and Mumbi Ngugi have also overruled the High Court by finding that the former politician was not an innocent buyer.
They have ordered that part should revert to the squatters as it was part of a scam plot to take away the land from the squatters.
"Mr Too was simply the prime mover in the scheme to swindle Sirikwa of the surrendered land and cannot be described by any stretch of the imagination as an innocent purchaser. The transaction relating to the 27 hectares (66.7 acres) was tainted by fraud and misrepresentation and was completely unworthy of protection by the court," they ruled.
According to the judges, Too was the master mover of the fraud and therefore could not claim that he bought the property as an innocent purchaser.
They continued: "Having found that Mr Too was part and parcel of the misrepresentation and fraudulent allocation and transfer to himself and Fanikiwa of the parcels of land that were expressly surrendered for settlement of the Sirikwa squatters, we find no basis or justification for the award of the 27 hectares to Mr Too.
The judges ended the decade-long battle between Too and Sirikwa squatters, estimated to be around 500 families.
It is the second time that the squatters; previously farmhands and labourers at the farm working for a British multinational have won the case.
The British firm once grew wattle trees at the contested property.
In their case, the squatters argued that it belonged to their forefathers before they were kicked out.
The court heard that following the colonial era company leaving the property, the squatters were to be resettled.
However, a company named Fanikiwa and the other persons including Too illegally registered themselves as the owners.
The Sirikwa squatters living near the Moi International Airport, Eldoret, went to court in 2007 and sued various government departments, Lonrho Agribusiness East Africa Company, Mark Too, David Korir, and others for grabbing their land.
According to the squatters, the politician conspired to hive off the 25,000 acres in 12 parcels with different acreages they claimed were allocated to them by the late President Daniel Moi in 1998, through a presidential decree.
Sirikwa members argued that over time, the title to the property changed hands, ultimately ending up in the name of Lonrho Agribusiness which in discussions with Sirikwa and the government agreed to surrender the suit properties.
Sirikwa relied on a number of official written communication from various government ministries and offices indicating the State's willingness and commitment to settle members of Sirikwa on the property.
They stated that Too and Korir who was a former property manager of Lonrho took advantage of their position and offices, allocated and transferred the property to themselves, and subsequently sold the same to third parties.
They ruled that if Lonrho General Manager J.P Hulme would have wanted to surrender the same to Too, Korir or Fanikiwa, then he would have indicated the same on November 9, 2000.
Instead, the judges observed, he wrote that the five properties were surrendered to settle Sirikwa Squatters.
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.
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