A titanic battle is looming between tea multinationals and the National Land Commission over a recent directive that land leases, which initially stood at 999 years, be aligned with the Constitution and fixed at 99 years.
This comes even after the Environment and Lands Court in Nairobi suspended implementation of the NLC orders that had been celebrated as victory over the multinationals by Kericho, Bomet and Nandi counties.
In the fresh directive,the NLC — through a Kenya Gazette notice dated April 6, 2023 — directed that the land leases be revised and fixed at 99 years.
The NLC further handed Kericho, Bomet and Nandi counties a major win in their push to re-survey the land in which the tea estates owned by multinational companies sit, to establish the actual acreage.
NLC directed that extra land found after the re-survey should revert to the county governments to hold it in trust on behalf of the local communities.
The directive was a win for governors Dr Erick Mutai (Kericho), Prof Hillary Barchok (Bomet) and Mr Stephen Sang (Nandi), who have been pushing for a resurvey of the land under tea estates, increase of land rates by a maximum of 600 per cent and reverting to manual plucking of tea from mechanisation by a ratio of 40 : 60 per cent.
However, their celebrations may be short-lived, following the directive by the Nairobi court.
The verdict by the Nairobi Environment and Lands Court now sets the stage for a major battle between the multinationals mainly located in Bomet, Kericho and Nandi counties and the NLC.
Justice Oscar Angote,in a judgment issued last week, quashed various recommendations by the land agency issued in 2019 linked to alleged land injustices in Kericho, Bomet and Muranga.
The court made the decision after Judicial Review Applications filed in court two years ago by multinationals, which are members of the Kenya Tea Growers Association (KTGA).
Claims by the Kericho and Bomet counties were filed on behalf of the Kipsigis and Talai clans, Kipsigis clans and the Borowo and Kipsigis Clans Self Help Group against the colonial government.
Justice Angote also issued an order stopping the Director of Surveys under the Ministry of Lands and the county governments of Kericho and Bomet from implementing recommendations published in the Kenya Gazette Notice of March 1, 2019, and dated February 18, 2019, in respect of the claims by the two counties on behalf of the Kipsigis and Talai clans, Kipsigis clans and the Borowo and Kipsigis Clans Self Help Group.
“An order of prohibition be and is hereby issued, prohibiting the Director of Surveys under the Ministry of Land and the county governments of Kericho and Bomet from implementing the recommendations published in the Kenya Gazette Notice of March 1, 2019 and dated February 18, 2019,” reads part of the judgment.
James Finlays Kenya Limited, Sotik Tea Company Limited, Sotik Highlands Tea Company Limited, Kaimosi Tea, and Nandi Tea were among the applicants in the case.
They sued the county governments of Bomet and Kericho, NLC and the Ministry of Lands.
Court documents indicate that NLC via Gazette Notice of March 1 2019 published recommendations dated February 18, 2019, arising from historical land injustice complaints from the Talai-Nandi.
KTGA argued in court that the NLC made its determination on the complaint on March 28, 2019, without notifying them of the said claims.
Just like in the current recommendations, NLC had directed that a re-survey be done on the lands being held by the tea estates to determine if there is any surplus land to be held in trust for the community by the county governments for public purposes.
Other recommendations included the renewal of leases to the lands be withheld until an agreement is reached with the respective Kericho and Bomet counties, and enhancement of land rates.
In the recent directive,NLC further directed that the counties should also sign a Memorandum of Understanding for the multinationals to provide public utilities for the community.
In the Nandi case, the NLC ordered that the tea companies create a scholarship fund to educate the Talai children.
For the past seven years, the three counties have been pushing for the lease terms, which have for decades been shrouded in mystery, to be made public, and the land rates and rent be revised upwards.
Governors Mutai and Sang have for the past six months been fighting to have the companies review their deployment of mechanisation in plucking of green leaves and revert to hand picking.