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Squatters ordered to vacate Sh3 billion parcel seek review of verdict

Over 10,000 squatters ordered out of a Sh3 billion parcel of land 16 days ago are putting in a fight to overturn the decision.

They are claiming the Supreme Court judges relied on evidence that was not presented before the two lower courts.

Sirikwa Squatters Group who on December 15, 2023, were permanently restrained from interfering or taking possession of the 25,000 acres of land near Eldoret Town in Uasin Gishu County, says the judgment is a nullity, void ab initio (from the beginning).

In the review application set to be mentioned virtually on January 31, 2024, the squatters say, “the judgment was obtained by fraud or deceit and or misrepresentation of facts by the appellants who had lost the case at the High Court and Court of Appeal respectively.”

In the case filed under a certificate of urgency by lawyer William Arusei, the squatters contest the judgment saying “the Supreme Court was not competent to make the decision it arrived at since it was not the first court of conduct of the protracted ownership dispute to warrant it evaluate and analyse the evidence presented before it.”

The squatters who are battling the ownership dispute with the family of the late Mark Too, claim the apex court relied on new evidence presented before it by a lands officer without its leave (permission) contrary to its own decisions of rejecting fresh evidence that had not been relied on at the superior courts.

Also, the court has been faulted for condemning the late President Daniel Arap Moi without being heard as having “unconstitutionally violated and arbitrarily deprived Lonrho Agribusiness of its right over and interests in the land in favour of Sirikwa Squatters”.

The squatters content the apex court deprived them of their crystalised right to the suit property, legally allocated to them by the commissioner of lands in 2007.

Mr Arusei argues that Chief Justice Martha Koome sitting with Deputy Chief Justice Philomena Mwilu, Supreme Court judges Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaack Lenaola, and William Ouko, irregularly vacated judgments of the Court of Appeal and High Court and issuing orders with far reaching orders.

“The judgment of December 15, 2023, sought to be reviewed risks implementation as the successful litigants may sub-divide, sell, dispose, change, transfer or in any other manner, interfere with the parcel of land to the detriment and to the disadvantage of the applicants,” states Mr Arusei.

On December 15, 2023, the Supreme Court allowed an appeal filed by Fanikiwa Limited, Mary Jepkemboi Too, and Sophie Jelimo Too (suing as joint administrators of the estate of the late Mark Too), Mark Too, Lonrho Agribusiness (EA) Limited and David Korir thereby vesting the land to them.

In the appeal, the appellants had named Sirikwa Squatters Group, the Commissioner of Lands, Chief Registrar Titles, Director of Lands Adjudication and Settlement, Director of Survey, District Lands Officer Uasin Gishu District, and 12 others among them banks, as respondents.

Pressing for the review of December 15, 2023, orders, Mr Arusei says exceptional circumstances and grounds have been laid bare, in that the judgment was obtained by fraud or deceit, hoodwinking and or misleading the court of law through failure to exercise candour before court and approaching the court with unclean hands.

Mr Arusei claims that the judgment is therefore a nullity, null and void.

He argues that the matter is of great public interest and the issues complained of must be determined expeditiously.

He is therefore urging the CJ Koome to reinstate the orders of Justice Thomas Ombwayo of February 9, 2017, and those of the Court of Appeal of November 15, 2022, recognising the squatters as the bonafide beneficiaries of the land in dispute, since it was allocated to them by a former Commissioner of Lands M Okungu vide a letter to the Attorney General on July 17, 2007.

In that communication to the AG, M Okungu stated the land in dispute belonged to Lonrho Agribusiness Limited formerly EATEC Limited and later surrendered back to the government for re-allocation.

On or about 1998, former President, the late Daniel arap Moi “granted a direct approval in favour of Sirikwa Squatters Group for purposes of relocating and settling their members.”

In that communique to the AG, Okungu disclosed the land was surrendered back to the government by Lonrho Agribusiness on or about 2000.

“The purpose of this letter is therefore to confirm that the allocation to the Squatters Group by H.E. the President still stands and that this office has no objection to formalisation of the squatters’ occupation subject to normal due and legal process being put in place,” Okungu informed the then AG that the land belongs to the squatters.

Mr Arusei informs the seven-judge-bench that not all the facts were laid bare before being called upon to kick out the squatters from their legally allocated land by the commissioner of lands.

“It is settled law that under Section 21A of the Supreme Court Act No.7 of 2011, the Supreme Court may review its own decision, either on its own motion or upon application by party if the judgment was obtained through fraud, deceit or through misrepresentation of facts,” states Mr Arusei.

The squatters have urged the court to review its judgment of December 15, 2023, as the judges relied on new evidence of a Land Officer Mr R J Simiyu on “the purpose of surrender when such new and additional evidence on the surrender of the land on November 2, 2000, was never placed before the Environment and Land Court, and the Court of Appeal.”

Mr Arusei says the evidence was produced before the Supreme Court without leave of the court.

“This new evidence was given extensive consideration, evaluation and analysis in the December 15, 2023, judgment,” the squatters lament.

The squatters further argue the court acceded to the appellants’ invitation and went ahead to determine whether Sirikwa had legitimate expectation to acquire or be allocated the suit parcels of land.

Also the squatters assert the Supreme Court delved extensively, why the estate of the late Mark Too was “adjudged guilty of fraud and went ahead to deal with the standard of proof of fraud in civil matters is not proof beyond reasonable doubt.”

The squatters allege the Supreme Court committed “treason to the Constitution of Kenya by usurping the jurisdiction and review or evaluate the evidence presented before it as it did on invitation by the appellants.”

The squatters agitate for a review of the judgment saying, “any litigant who attempts to pollute the streams of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief either interim or final.”

When the application was placed before the Duty Judge on December 21, 2023, the squatters were directed to serve all parties in the case with the suit papers.

All parties were further directed to file written submissions within 14 days.

The case will be mentioned virtually on January 31, 2024, for further directions before the Deputy Registrar Supreme Court Ms Nelly Kariuki.

The judge declined to certify the application as urgent.

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