Supreme Court setback for Kericho’s bid to seize land from multinationals

The Supreme Court has rejected a petition by the Kericho County government seeking an advisory opinion on whether it can seize land from multinational tea companies.County officials claim the land was forcibly acquired by British colonial administrators from the Kipsigis and Talai people. More than 100,000 people are said to have been driven from their homes by the colonial-era army.The county government, the apex court said, should have first sought advice from the Attorney-General before filing a request for an advisory opinion.The five-judge bench presided over by Justice Mohammed Ibrahim said the application was premature. The other judges were justices Njoki Ndung'u, Isaac Lenaola, Smokin Wanjala and William Ouko.

“The issues are also live at the High Court in a pending judicial review (filed by multinational tea firms). If the applicant wishes to have the matter resolved, it may consider [joining] the pending case,” said the judges.“The matter is riddled with difficulties and is messy. There is a pending matter at the High Court. If the court below learns about this advisory opinion application, it will suspend its proceedings.”It was also noted that a similar case was lodged in a United Kingdom court on the eviction of the Kipsigis and Talai communities from their ancestral lands by the British to pave the way for the creation of tea estates.The Attorney-General told the Supreme Court that the county government’s lawyer should have advised the devolved unit about the pending cases – in Kenya and the UK - and familiarised himself with the procedures for seeking an advisory opinion.The pending judicial review case at the High Court was filed by tea firms, including James Finlay Kenya Ltd, Sotik Tea Company, Sotik Highlands Tea Co. Ltd, Changoi/Lelsa Tea Estate, Tinderet Tea Estate, Kaimosi Tea Estate, Kapchorua Tea Plc, Kipkebe Ltd, Nandi Tea Estates and Kaisugu Ltd.The companies own tea estates in Kericho and Bomet counties and are members of the Kenya Tea Growers Association, which promotes the interests of the tea plantation sub-sector.They sued the two county governments, the National Land Commission and the Director of Surveys in the Ministry of Lands.The proceedings relate to recommendations published by the National Land Commission in the Kenya Gazette on February 18, 2019.The NLC recommended that the ancestral land should have been surrendered to the affected communities at independence.Another recommendation was that expired tea land leases should not be renewed without the agreement of the respective county government.It also suggested that the Kenyan government acknowledge that the land was unlawfully taken from the Kipsigis and Talai.The recommendations arose from historical land injustice complaints made by the Kericho and Bomet county governments on behalf of various Kipsigis and Talai clans against the colonial government and the Kenyan government.The companies want the court to issue an order quashing the gazette notices.