A Land Court has evicted a Nyeri widow from her 285-acre estate after establishing that she has been living on public land that was irregularly allocated to her husband 54 years ago.
In the judgement issued last Thursday by Justice James Olola, the court found that the Commissioner of Lands unlawfully leased the land parcel in Naromoru to the Late George Mugenya since the Ministry of Agriculture which is the owner of the property, was not aware.
Mugenya’s wife - Ms Phelis Nduta moved to court in 2014 suing the Nyeri County government and National Land Commission (NLC) for attempting to evict her from her property.
Her court documents showed her family got access to the estate after her husband was issued with a Temporary Occupation License in 1968 which allowed him to use it as grazing land.
But he died before the expiry of the nine-month contract which was then later transferred to her.
Following the termination of the agreement, Ms Nduta says that she got another Temporary Occupation License from the Commissioner of Lands allowing her to live on the property for another three years.
Her agreement with the Commissioner of Lands showed that the license would convert into a freehold title deed upon fulfilment of its conditions which included paying an annual rent and the land’s capital value after the three years, which she met.
The contract’s expiry saw the Commissioner of Lands and the Director of Surveys start preparing a deed plan for her.
But the move was protested by the Agriculture Ministry which said it was not aware the Commissioner of Lands had issued licenses to Nduta and her husband.
The letter dated June 3, 1983 written by the Deputy Director of Livestock showed that the government department had not surrendered the land to the Commissioner of Lands for leasing.
The Livestock Department said it only got to know its land was being leased out when the Commissioner of Lands started surveying the property for the issuance of a title deed.
It said that the Agriculture Ministry had preserved the land over the years for livestock grazing and fodder production.
At the time, Ms Nduta had already built a home and sold six acres of the land parcel to a certain Ms Naomi Wanjiku with whom they lived as neighbours.
But the Court ruled the agreement signed between the Commissioner of Lands and Ms Nduta was not legally protected as it went contrary to the Law since the Commissioner of Lands lacked the powers to alienate public land.
Justice Olola faulted Ms Nduta’s defence that the Government Lands Act allowed the President through the Commissioner of Lands to transfer ownership of such public land parcels.
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“This is not a proper interpretation of the law as the President’s power under the law is limited to alienating government land,” ruled the judge.
As a result, the judge said that the Commissioner of Land’s commitment that it would register the plaintiff and issue her with a title deed was ill and misconceived.
He added that Ms Nduta contrasted herself by claiming she owned the property since some of the documents she produced before the court showed the estate was public land.
The judge said that a letter by Nduta’s husband to the Commissioner of Lands on May 4, 1966, requesting to be allowed to use the land on a Temporary Occupation License, showed that the deceased had learnt of its availability after the Veterinary Department informed its head offices in Nairobi that it was not using the property.
“In the document, the plaintiff’s late husband acknowledged that the land belonged to the Agriculture Ministry while requesting for it thus constituting public land,” he said.
While allowing the devolved unit and NLC to evict the plaintiff, Justice Olola said that the due process of the Land Laws should be adhered to.
“The NLC is expected to notify all affected persons in writing a notice in the Kenya gazette and the media at least three months before eviction,” he said.