Court orders Kwale county to settle 1,350 squatters on disputed land

The High Court in Kwale has ordered the County Government to facilitate subdivision of 100 acres out of the 1000 acres disputed private land to settle squatters.

Justice Addraya Dena gave the Kwale County Government 90 days to subdivide the land belonging to Greatcom Limited and settle 1350 squatters on the 100 acres that was set aside for them.

“That the Petitioner (Kwale County) shall within 90 days from the date of this judgement facilitate the consideration and approval of the subdivision scheme of the suit property LR 4752/2 into two portions measuring 100 and 900acres as shall be presented by the 3rd Respondent (Greatcom Limited) in compliance with the decree in ELC 12 of 2004 (OS),” said Justice Dena.

She said that upon completion of the subdivision, anyone found occupying the portion hived off in favor of Greatcom shall voluntarily vacate within 90 days,’ failure to which the firm shall be at liberty to evict them in accordance with the law.

The judge said that in the alternative Chief Land Registrar, Greatcom Limited and Maruma Holdings Limited are at liberty to engage on acceptable terms of hiving off additional land for resettlement of genuine squatters.

Justice Dena's orders stem from a petition filed by Kwale County Government on behalf of 1350 squatters whom it claimed were supposed to be settled on the suit land.

In the petition, Kwale County sued National Land Commission, the Chief Land Registrar, Greatcom Limited and Maruma Holdings Limited over fraudulent lease of the suit land.

The county claimed that the suit property was allotted to 1st World war veterans in 1914 for a term of 99 years.

The county contended that former Lands minister Dauris Mbela, acquired the suit property from Jeremiah Njoroge and not by allotment from the government.

The county said that in 1981 Mr. Mbela allocated the land to Maruma Holdings Limited for a period of 932 years in which he was Director under a new survey plan.

The county argued that the conversion of public land to private land was illegal and an abuse of office by the said Minister.

Kwale county claimed that the two firms acted in cahoots with the Minister for Lands in procuring the unlawful allotment letter and registration over the suit property which was allotted to another user.

County Executive Committee Member (CEC) of Kwale County, Saumu Beja said that her predecessor engaged NLC during the period of 2013-2017 on the proprietorship of the suit property by Maruma Holdings Limited popularly known as Mbela Farm through oral and written correspondence.

However, Justice Dena said the certificate of lease presented by the respondents shows an endorsement of the extension of lease and agreed that the grant had not lapsed for surrender to kick in.

The judge said the cdoes not know what happened in the land transfer because it failed to provide any evidence that Maruma Holdings Limited in any way acted fraudulently to obtain fraudulent titles. 

"I had no evidence before court to convince me that Maruma Holdings Limited (4th Respondent) participated in any irregularity. In any event no evidence was submitted to show that the said Darius Mbela was a Minister of Lands at this point in time and thus abused office by allocating his company the suit property,” said Justice Dena.

The judge said the law allows an individual to apply for an extension of lease which the Maruma Holdings did and was granted as noted on the instrument of title.

She said the county failed to prove that the extension of the lease in favor of the Maruma Holdings was irregular and illegal.

“For me the burden was still on the petitioner (Kwale County) to produce evidence that the process of extension was not followed,” said Justice Dena.

However, the judge found that NLC violated the squatters constitutional rights by not listening to their complaints and termed the Commission's decision granting the title deed to Greatcom illegal, null and void.

The judge said that it is one thing to attend and a different thing altogether to make representations which are recorded and then considered.

“The inference that this court can draw from the material presented being the determination is that only one party made presentations during the hearing,” said Justice Dena.

In the petition, the county asked the court to declare the process of acquiring the said land by Greatcom Limited and Maruma Holdings Limited irregular and cancel the fraudulent registration of a lease and a certificate issued to the two firms.

The county also wanted the court to quash NLC’s decision that leased the said land to Greatcom and Maruma Holdings and compel the Commission to reverse all the said land to the public.

The county asked the court to issue a mandatory injunction against Greatcom Limited stopping them from continuing to evict residents living in the suit property that is causing a dire humanitarian crisis

It also challenged the manner and the procedure of allocation of the suit property to Maruma Holdings Limited, as it could not be determined whether the existing lease was surrendered or had lapsed.

The county further challenged the irregular extension of the lease in favour of the firm for a further term of 932 years commencing December 1, 1981.

Beja said the grant and extension of the lease in favour of Maruma Holdings Limited was not in the best interest of the community who have occupied the suit premises for decades.

He said the conditions precedent for the granting of the lease were not adhered to by Maruma Holdings Limited.

The County said the government possessed reversionary interest in the suit property and upon expiry of the leasehold interest in 2013 the same reverted back to the government.

The County said that to circumvent the eventuality of the expiry of the initial lease period, Maruma Holdings Limited irregularly sought and acquired leasehold interest in the suit land from 1981 for 932 years, thus effectively and illegally converting public land to private land, to the detriment of the public.

In their defense, Greatcom Limited Manager Robert Njoroge admitted that at the time of purchase, they were informed about the restriction lodged pursuant to the court order in HCCC 12 of 2004 (OS) which crystalized in a decree to excise 100 acres in favour of the County and the people it represented.

He said that the firm embarked on the process of compliance with the decree but the subdivision plan was never approved and inquires thereto elicited no responses.

Njoroge said that within a month of receipt of Greatcom Limited application for planning permission, the County filed the complaint before the NLC challenging the title deed.

The Manager said that the former County Executive member of Lands, Mr Mafimbo raised no objection during a public inquiry held at the Kenya School of Government.

Njoroge said that also present during the above hearing was a delegation of residents from Tiwi said to have been occupying portions of the land. 

Greatcom Limited told the court that it purchased the suit property bonafide in 2013 and that the title was immune from the NLC mandate under provisions of section 14(7) of the NLC Act.

Njoroge said the suit property had already been alienated to a private individual back in 1914 and title issued.

He said the allotment to a different user can only be with reference to past allocation.

Other than the preliminary objection on court’s jurisdiction, NLC filed no response to the petition despite Mr Mbuthia having attended court several times on behalf of the lands commission.

The Chief Land Registrar did not respond to the petition either.