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.
Shows
See AllAM Live
AM Live is NTV's morning current affairs show that sets the agenda for the day with insightful panels every weekday.
Business Redefined
Business Redefined is Kenya’s premier thought leadership platform for unpacking matters regarding economic and finance policy as well demystifying complex developments in the region’s capital markets.
Comedies
A collection of our premium content. Diam curabitur vehicula A collection of our premium content. Diam curabitur vehicula
Entertainment
A collection of our premium content. Diam curabitur vehicula A collection of our premium content. Diam curabitur vehicula
Full Episodes
A collection of our premium content. Diam curabitur vehicula A collection of our premium content. Diam curabitur vehicula
Gumzo La Sato
Gumzo La Sato is a live social issues show that aims to create awareness about issues affecting the larger society. The discussions range from Parenting, Marital bliss and struggles, Oppression, violence, and all matters of the Heart.
Health Diary
Health Diary is a weekly show that highlights different types of diseases/conditions and seeks ways to prevent, treat/manage them. The show debunks this through real life stories and also feature specialists in different fields, to offer medical advice on the same.
Letter To My Younger Self
Letter To My Younger Self is a podcast where guests get to write a letter to their younger self, from which Maxine formulates questions to ask them during the hour-long show.
Nation Reports
Nation Reports is a weekly podcast offers an opportunity for listeners to interact with various reporters and journey with them as they unravel the biggest most emotive stories.
One Health Lens Podcast
Discussing health matters and human stories from Kenya and across Africa. We talk big picture from people to policy, ecosystems, and everything in between. Follow us on LinkedIn: https://www.linkedin.com/company/onehealthlens
Paradise Lost
Paradise Lost peeks through the story of Louis Otieno, the times, and everything in between.
Speaking of GEN Z
Speaking of Gen Z brings you entertaining but meaningful conversations about a generation that is trying to navigate through adulthood. Join hosts Michelle, Jackie and Esther as they unravel all things Gen Z.
Sport On
Sport-On is a 30-minute sports magazine show on NTV and 3 hours on NATION FM. The show seeks to give the sports “fanatics” and “funatics” comprehensive and in-depth coverage of sports both locally and internationally.
Tech-over
The extent of technological growth is beyond mere acknowledgment; it has seamlessly integrated into our daily existence. A few years ago, the notion of paying electricity bills through mobile money or recharging with 'tokens' in Kenya seemed inconceivable. Online product sales were considered distant, and artificial intelligence is rapidly reshaping various facets of our lives. Amidst these technological leaps, those with a solid understanding of tech can navigate challenges, seize opportunities, and build a sustainable livelihood. Tech over Show aims to be the platform facilitating discussions among thought leaders, innovators, tech companies, and the government, addressing challenges and opportunities in Kenya's thriving tech industry.
Thamani
Thamani is a business show which is dedicated to emerging issues regarding micro, small and medium size businesses.
The Politalk podcast
This is The Politalk podcast. Here we look into the ins and outs of everything Kenyan politics. We pull no punches and have no reason to sugarcoat anything that matters to Kenyans.
The Trend
A two-hour-long live show that airs on Fridays. The show focuses on what is current in the entertainment industry, controversial and popular across all media platforms targeting those aged between 25 and 35 years.
The trend podcast
The trend podcast highlights and captures the best of banter from #TTTT segment that airs every Friday on NTV. It's the TTTT EXTRA
The Wicked Edition
The Wicked Edition with Dr. King’ori seeks to address serious issues through humour and relatable wit. It is a two-part half hour show filmed in front of a live audience
Trending
A collection of our premium content. Diam curabitur vehicula A collection of our premium content. Diam curabitur vehicula
Twende
Twende is a travel show that highlights beautiful, unique, diverse locations, people, and cultures. The show offers fresh perspectives on familiar locations and memorable experiences in new ones.
Unscripted
This Saturday evening lifestyle show lets viewers share their stories and life experiences as openly & honestly for the purpose of shifting the culture of silence.
VIP Access
VIP ACCESS is Anyiko Owoko’s YouTube and podcast show on Music and Culture dedicated to promoting Africa’s most promising talent and creatives. This podcast grants you VIP access into timeless interviews while providing a platform for rising as well as established artists across the continent. Since launching in 2018, Anyiko has interviewed over 70 African music stars.
WADR
This weekly news show aims to have all sides of debate but not be constrained by it, listen to main voices in the contest but not allow them to hold the viewers hostage, entertain debate but allow push back with all due respect.
When death do us part
In this podcast, three widowers openly speak about the process of grief, how they found themselves exposed to the emotional turmoil of losing their wives, and how society still does not know how to deal with them.
Your World
Your World is a health, wellness and variety show. It provides a platform for audiences and experts to share their experiences on how to improve or manage health issues, across Kenya and the Africa region.