NLC: Mtito Andei, Mackinnon in Makueni, not Taita Taveta
Makueni MCAs erect a signpost on the western bank of the Tsavo River along the Mombasa-Nairobi highway on 5 June 2020 amid escalating border tensions between Makueni and Taita Taveta counties.
Mtito Andei and Mackinnon Road towns will no longer be disputed as far as county boundaries are concerned after the National Land Commission (NLC) went on location and established where the borders are.
If an NLC report filed in a Mombasa court last week is adopted, any claim by Taita Taveta County on either town will stop forthwith.
Mackinnon Road Town belongs to Kwale County and Mtito Andei is in Makueni, as per NLC’s interpretation of a 1992 Act that the drafters of the 2010 Constitution used to determine county boundaries.
As such, any existing levy collection ambiguities and cases of locals being asked to pay taxes to two counties will no longer apply.
NLC was called to look into the matter by the Environment and Land Court in Mombasa following a petition filed in 2021 by Okiya Omtatah, then an activist and now the Busia Senator. He had moved to court on behalf of 178 residents of Taita Taveta County.
The gist of Mr Omtatah’s petition was that there were citizens being subjected to double taxation due to unclear boundaries between neighbouring counties.
The court ruled that because a body the Constitution intended to handle county disputes had not been formed, NLC was best placed to handle the matter.
The court ordered NLC to “prepare a detailed report with practical and pragmatic recommendations on the appropriate redress to resolve the said county boundary dispute once and for all” and then present the report back to the court to be adopted as an order or for further directions to be issued.
Once seized of the matter, NLC held hearings and was informed of the situation around the towns. The NLC team was chaired by the commission’s chairman Gershom Otachi. Two NLC commissioners, Reginald Okumu and Alister Murimi, were the other members of the three-person team.
Mr Omtatah made his presentation as did the affected counties.
Kwale County insisted that Mackinnon Road Town has been in its jurisdiction even during the colonial era. It further argued that according to boundaries set by the Independent Electoral and Boundaries Commission (IEBC), Mackinnon Road Town is a ward in Kwale County.
Makueni, on its part, made various arguments to support its claim on Mtito Andei. One of them was the origin of the name.
Mtito Andei, NLC was informed, is derived from the native Kamba term “mutito wa ndei” which means a forest of vultures. The original residents of Mutito wa Ndei, the commission heard, are the Akamba people.
Makueni also argued that Taita Taveta County has never offered any government services in Mtito Andei “whether administrative, security, health, education, political, social or economic”.
Regarding Mackinnon Road, Taita Taveta’s argument was that its border with Kwale starts at Taru, not the disputed town.
One of the witnesses told NLC: “Our grandparents narrated to us that the boundary of the area of the Wadawida land towards Mombasa lay at Taru.”
Taita Taveta further made reference to a 1962 map, the Independence Survey Map, to show why Mackinnon Road was under its jurisdiction.
With regard to Mtito Andei, Taita Taveta produced a witness, Mr David Tole, who said he was born in the town in 1946 and that he used to consider himself as belonging to Voi district.
He told NLC that after the 2013 General Election, Makueni County started demanding taxes from the area, as did Taita Taveta “leading to double payment of taxes with, harassment and, shutting of businesses, arrests and impounding of goods in default”.
Furthermore, he said, people from Makueni County started invading their community lands claiming that Makueni had reclaimed “grabbed” land.
“He submitted further that tension is high and tribal clashes are imminent,” says the NLC report.
After hearing all the parties, NLC came up with two issues of determination. The first was whether the border disputes amounted to historical injustices. It said they don’t.
“(They) do not meet the required threshold (as) the (parties) have failed to demonstrate a movement of a people,” said NLC.
The second issue of determination was, which law applied to the dispute, and whether there was ambiguity as to the borders.
After establishing that the repealed Districts and Provinces Act of 1992 was the basis of determining the administrative boundaries of the county governments, NLC found that there are no grey areas regarding where the two towns lie.
“(A) joint team of surveyors from the three counties together with surveyors from the commission based their findings on the Districts and Provinces Act of 1992 as the legal framework for confirming the current county boundaries,” says the NLC report. “The survey team surveyed and confirmed the location of all beacons and natural features that mark the boundary between the Counties of Makueni and Taita Taveta as well as the boundary between Taita Taveta and Kwale.”
It further notes: “From the survey finding, it is without doubt that there is no ambiguity as to the current boundaries as it is.”
Accompanying the NLC report are the commission’s maps showing the borders with respect to the affected towns.
NLC recommends that the boundaries be delineated as prescribed in the Districts and Provinces Act of 1992.
“Residents of Mackinnon Road and Mtito Andei towns shall not be subjected to double taxation; the boundaries having been clearly demarcated and delineated,” says the commission.
