How Jackson Angaine, Jomo’s minister, grabbed 2,300 acres of Mt Kenya forest

At the Kenya National Archives, the notoriety of Jackson Harvester Angaine, Kenya’s first minister for Lands and Settlement, sticks out like a sore thumb. In every file you pick about land, chances are that you would stumble on a letter containing some unlawful approvals or instructions.

There would also be some requests – and these were many – from a Cabinet minister or a permanent secretary, seeking allocation of some land he had “seen” and which had a colonial farm house. The policy then, under the Z-plot scheme, as it was known, was that if you were a senior government official and had identified a colonial farm with a farmhouse, you could request Angaine to approve allocation of the farmhouse together with 100 acres.

So, I was not surprised to hear that Angaine actually degazetted part of Mt Kenya forest to ostensibly settle some squatters but ended up taking the entire land. Angaine’s first love was land. He loved acquisitions. He could do anything to have a title deed.

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Here is the story of Ontilili forest squatters, which has been raging for more than 50 years. It is about their fight for justice.

The story is said to have started in 1970 when some Mt Kenya squatters sent a delegation of six to President Jomo Kenyatta at his Gatundu home and sought to be allocated land within the forest – after all some of them were employees of the forest department. Mzee Kenyatta listened to them and directed Angaine and then minister for Natural Resources, William Odongo Omamo – under whose docket forests fell – to work out a formula, excise Ontulili forest and have the squatters settled.

Ontulili was one of the various “emergency” villages in Central Kenya and their inhabitants eked out a living by farming inside the forest while providing labour to the forest department. By the 1970s, they were earning Sh8 per month from the department. In return, they would give each retiree an acre of forest land to clear and plant temporary crops for three years. After that, the land was taken over by the forest department to plant cypress trees for the local market. Ontulili, on the north-western slopes of Mt Kenya, had a timber factory and also housed a fire watchtower.

Forest stations

Shortly after the Gatundu visit, on September 11, 1970, two ministers – Mr Angaine and Mr Omamo – toured the forest stations and addressed the squatters. They promised to settle them, though Mr Angaine had other motives.

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In a gazette supplement No. 26 of May 1975, the government sought to alter the Mt Kenya forest boundaries by excising 384 hectares through a legal notice. A further 546.2 hectares was excised through Legal Notice No.107 of 1977 as the appetite for more land increased. The land was surveyed and given reference numbers 13,269 and 12,234 respectively and measured 930 hectares – or about 2,300 acres.

Shortly after, the villagers were asked to clear the land. They hoped that this would lead to allocation. They were wrong. It was Angaine who fenced the land, which had been given to a company known as JH Angaine and Sons Ltd. Why Angaine diverted the squatters’ land for personal use – and why he got away with it– is the story of the impunity that was running through the Ministry of Lands and Settlement, where heists, corruption and bad-manners reigned supreme.

Angaine was not a needy person. He was not a squatter. At independence, he had already acquired a 252-acre farm in Timau and as the minister in charge of Lands, he could as well have found more land to buy, or grab, if he wanted.

The grabbing of the Ontulili land became a classic case of injustice and forced the squatters to start following up through the chaotic bureaucracy, which was apparently headed by the man who had taken the land. The only piece of letter that they had was one dated May 18, 1977 from the chief conservator of forests to the forester at the Ontulili station stating that the ongoing excision was to allocate land to the squatters.

It was only in 2003 that the squatters sued the government, arguing that the Commissioner of Lands had subverted the government's intentions by allowing Angaine to use the land.

Home Grown Kenya Limited

But Justice Mary Kasango ruled on June 30, 2011 that the squatters had “delayed” in making their claim, which had been filed more than three decades after Angaine’s company was allocated the land. According to Justice Kasango, part of the land had already been sold to Home Grown Kenya Limited. The other issue was how the six people who had visited Gatundu had grown to 550 persons in the suit. The application was dismissed since there was “no document indicating that the appellants were entitled to the land that was excised out of Mt. Kenya Forest”.

I am not sure that the squatters could access the secret registries of the ministries of Lands and Environment and Natural Resources to get the initial communication between Omamo and Angaine. But, certainly, there must be a record lying somewhere within the thousands of files and in the millions of papers indicating the intention behind the excising of Ontulili forest. That intention was not, and the court was told as much, to settle Angaine! Never.

At the Court of Appeal, where the squatters went to look for justice, their case, which was  premised on the language of rights, was brought before Justices Martha Koome, Philomena Mwilu, and J. Otieno-Odek. Their lawyer submitted that Justice Kasango had erred by failing to appreciate the history of the feud, the politics of squatter settlement – and that the six people who visited President Jomo Kenyatta at Gatundu represented the squatters. He further submitted that there was no way the government could have excised 3,000 acres of land for one individual.

One would have wished to hear Angaine’s defence. His case rested on abuse of power – and the question was: Would land, or a title, acquired through such abuse stand scrutiny in a court of law, no matter the number of years that it had taken the litigants to reach out to court for help? The squatters, indeed, asked the Court of Appeal “to interpret the Constitution in a manner that promotes its purposes, values and principles and advances the rule of law and human rights”.

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This is one sorry case that could have benefited from archival research but, as it were, many litigants go blindly into cases and fail to argue a case that would have landmark implications. And the Court of Appeal judges, who only had the letter from the conservator of forests, were asking themselves the question: is the letter dated May 18, 1977 from the Chief Conservator of Forests capable of conferring any rights to the squatters? The answer was negative.

The appellants were not squatters on the land that Angaine occupied, which further complicated the problem. Angaine, as a minister, had known the folly of having people squat in his farm. He did not allow it.

Excised forest

The next question that faced the Court of Appeal was whether Jomo Kenyatta’s oral promise was enforceable in law. The squatters had alleged that the late President had promised to allocate them land from the excised forest. “Can a promise to allocate land create any interest in land and is such a promise enforceable?” the court asked and answered the same question: “It is our considered view that mandamus cannot issue to enforce a promise to do something in future; neither can mandamus issue to enforce a promise not underpinned by a statutory provision. A promise can neither create nor convey an interest in land.”

While that may be so, the court failed to appreciate that Angaine shortly after the visit by the squatters to Mzee Kenyatta, went to Ontulili accompanied by Omamo and addressed the same squatters. The place of memory versus written accounts must be appreciated in the courts. 

That Angaine had excised forest land and allocated it to himself should never stand in a democracy – no matter how many years it has taken. But the Court of Appeal did not dwell on the unlawfulness of that transaction and left it to the National Land Commission, which has the mandate to deal with historical land injustices.

That is the reason the National Land Commission, in its wisdom, is revisiting that matter and finding that the squatters have a case. And they are not alone. Thousands have been short-charged by politicians who shamelessly grabbed land and made a fortune from that mischief. We should pay attention to that Angaine land saga.

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