Court posthumously clears ex-President Moi in Kwale land fraud case
The Court of Appeal has cleared former President Daniel arap Moi of any wrongdoing in the allocation of more than 16,000 hectares in Kwale County to a private company in the 1980s.
Members of the Amwezi and Mirima clans of the Duruma community in Kwale had claimed the land, accusing Moi of misrepresentation and fraud.
Through their five representatives, the two clans petitioned the court for repossession of the land, alleging forgery and irregularities in Moi's notices allocating the land to the private company.
Judges Jessie Lesiit and Pauline Nyamweya ruled that the five appellants had failed to prove that the former President violated the law in allocating the huge chunk of land to Nyari Investment (1998) Ltd.
"My conclusion, therefore, is that the evidence on record shows that the former President issued a notice of demarcation as required by section 118 of the repealed Constitution. The allegations of fraud and misrepresentation were not proved to the requisite standard to support a finding that the said notice was irregular," said Justice Nyamweya, who was backed by Justice Lesiit.
The judges also noted that Kwale County Council, as it was then known, did not complain or raise any allegations of fraud and misrepresentation on the part of the former President.
This ruling means that more than 15,000 members of the Amwezi and Mirima clans of the Duruma community will not get their land back unless the Court of Appeal ruling is overturned by the Supreme Court, should the community decide to go to the to court to challenge the decision.
Mr Joseph Sombo, Mr Mwanduri Meri, Mr Bahru Mwagundu, Mr Mwahui Mwajiramba and Mr Kazungu Karisa brought the case on behalf of the more than 15,000 members of the two clans.
They sued Nyari Investment (1998) Ltd, Mocash Processors (K) Ltd, Kwale County Council, the National Lands Commission, the Kinango district commissioner, and Ms Ms Zeinabu Jan Mohamed, who was sued as the legal representative of Moi. The plaintiffs originally sued Moi, but replaced him with Ms Janmohamed after the former president’s death on February 4, 2020.
In their papers, the five claim that the allocation of land under LR No. 12502 in Taru extending to Chengoni in Samburu Division in Kinango, measuring about 19,053 hectares, was done illegally and irregularly.
They claimed that a 1980 court ruling had invalidated Nyari Investment (1998) Ltd's title to the land and granted the clan full ownership of the land.
The clan claimed that political interference prevented the community from getting the land, despite the court order, and that Moi then unconstitutionally demarcated and allocated the land to the company.
They claimed that Moi had falsely represented to the Kwale County Council that the company held shares on behalf of the government.
It was their contention that the process of demarcating part of the land was designed to circumvent the High Court ruling that had returned ownership of the entire land to them.
The clan claimed that the process was fraudulent and invalid because they had been excluded from a 1981 baraza and that the 250 people who attended the meeting had been paid and brought in from elsewhere.
They also claimed that a gazette notice demarcating the land and allocating it to the company was published before the baraza and confirmed the irregularity of demarcating part of the land.
They then sought a permanent injunction restraining the respondents from dealing with the land and from interfering with their claim to the ancestral land.
They also sought a declaration that the purported demarcation of a portion of the land measuring 16,655.3 hectares and its allotment to the company was null and void and that the minutes of the meeting held on September 24, 1981, were illegal.
They said they were aware of the letters written by Moi and the Attorney General regarding the demarcation of the land, but they doubted the authenticity of the letter because it did not bear the presidential seal and was not signed.
It emerged that about Sh3.8 million was used to compensate residents affected by the demarcation and allocation of the land to the company.
For its part, Mocash Processors (K) Ltd defended itself, saying it was the registered owner of the land, having legally acquired it in 2000 through an advertised public auction after Nyari Investment (1998) Ltd defaulted on loan repayments.
It said it bought the property from Delphis Bank (now Oriental Commercial Bank), which had put it up for sale to recover an undisclosed amount of money borrowed by Nyari Investment.
Through its director Awadh Swaleh, Mocash Processors (K) ltd said it bought the property legally and that it was not a party to the High Court case whose judgment was delivered in 1980.
Another witness, who served as an assistant chief in Taru Location during the land demarcation process, confirmed that compensation was paid to the local people who were living on the land.
Moi, for his part, had said he had the legal authority to allocate land to any individual or legal entity under the law.
The Environment and Land Court (ELC), which heard the case on October 24, 2014, dismissed the case after finding that there had been a proper process for the demarcation of the land.
The court also found that the land had been validly allotted, thereby overturning the 1980 judgment that restored the clan's ownership of the land.
The ELC also found that Mocash Processors (K) Ltd bought the land at public auction and was a bona fide purchaser for value without notice of the clan's allegations, and therefore its title could not be challenged or disturbed.
Aggrieved by the ELC's decision, the five individuals approached the Court of Appeal, seeking to overturn its findings. In a majority decision, Justices Nyamweya and Lesiit concluded that due process had been followed in the demarcation and allocation and that no fraud had been established.
The judges found that the evidence presented showed that the land had already been demarcated by the time the President issued the gazette notification and that the affected residents had been compensated.
"The appellants have not discharged the burden of proving their allegations that the said process was flawed or irregular. In this respect, the learned trial judge did not err in finding that the second setting-aside process was properly conducted," the judges said.
The judges also found that the appellants failed to provide evidence that they had the authority to act on behalf of the more than 15,000 people they claimed to represent in the case.
"We therefore hold that the trial judge did not err in finding that the appellants failed to comply with the requirements of the law relating to representative actions. This appeal has no merit and is hereby dismissed," they said.
Justice Gatembu Kairu, however, agreed with the appellants and allowed their appeal, but his decision is inconsequential.
"I would allow the appeal. However, since I am in the minority, I do not need to deal with the other issues raised in the appeal. The orders of the court are as suggested in Justice Nyamweya's judgment," the judge said.