Sirikwa Squatters Want Review Of Judgement Allocating 25k Acres Land To Mark Too’s Family

• Sirikwa squatters filed for a review of the Supreme Court’s judgment, arguing it relied on unproduced evidence
• The squatters claimed the judgment requiring them to vacate the land was null and void from the start
• They questioned the Supreme Court’s competency in overturning orders that had declared them legal owners of the land

Didacus Malowa, a journalist at TUKO.co.ke, brings over three years of experience covering politics and current affairs in Kenya.

Uasin Gishu - Sirikwa squatters who have been battling for a vast prime land with former powerful KANU MP the late Mark Too, his family, and companies are determined to challenge the ruling by the Supreme Court of Kenya.

Fanikiwa Limited, which is associated with Too, the former politician’s two widows, Mary Jepkemboi Too and Sophie Jelimo Too, Lonrho Agribusiness, and David Korir appealed against decisions by the High Court and the Court of Appeal that nullified the over 10,000 squatters’ ownership of the parcel.

The appellants filed petition No. 32 (E036) of 2022, consolidated with petitions 35 (E038) and 36 (E039) of 2022, where they sought to reverse the judgments of the High Court and Court of Appeal, which granted the squatters and some financial institutions ownership of the parcel valued at over KSh 3 billion.

Mark Too’s family and his companies decried the lack of fair hearing and prejudice by the High Court in 2017 and subsequent verdicts by the Courts of Appeal in 2022.

The matter was heard by Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, Mohamed Khadhar Ibrahim and Justice William Ouko.

In their ruling, the judges stated that the consolidated appeals by the applicants meet the constitutional threshold under Article 163(4)(a) of the Constitution.

“Having considered the issues framed by this Court, our findings are as follows: The consolidated appeal meets the constitutional threshold under Article 163(4)(a) of the Constitution.

The superior courts below violated the appellants’ right to fair hearing under Article 50(1) of the Constitution. The proceedings at the trial court ought to have been conducted through taking of viva voce evidence," stated the court in the December 15, 2022 judgement.

Supreme court rules on Too's land

The Supreme Court judges also differed with the High Court that the Sirikwa squatters had a legitimate expectation of the land on the grounds that the former president, the late Daniel Moi, ordered that the land be allocated to them.

“Sirikwa did not have a legitimate expectation to acquire and be allocated the suit parcels. Sirikwa has no right to the suit parcels as its members were not squatters on the suit parcels,” the court ordered.

They set aside the orders of the High Court of Kenya and the Court of Appeal that had allowed the squatters and some financial institutions to take over the contested vast parcel of land.

“The Judgment and Orders of the trial and appellate courts are hereby set aside in their entirety. The first respondent herein, to wit, Sirikwa Squatters Group, its agents, members, servants, employees, and/or representatives, are hereby permanently restrained from entering, taking possession of, and in any other manner interfering with Fanikiwa’s (the first appellant) quiet possession of the suit properties,” Supreme Court ruled.

The land parcels the squatters have been barred from are LR NO Pioneer/Nigeria Block 1 (EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487, 5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471, 1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85, 5495 and 5902.

“We declare that the finding by the superior courts below to the effect that the retired president’s approval of allocation of the suit parcels and the subsequent surrender of the titles was for purposes of settling Sirikwa’s members, violated and arbitrarily deprived the third appellant herein, Lonrho Agribusiness, of its rights over and interests in the suit parcels as guaranteed under Article 40 of the Constitution,” the court concluded.

Why do Sirikwa squatters want judgement review

Following the permanent restraint by the Supreme Court, Sirikwa squatters have filed for a review of the judgment, arguing that the highest court in the land relied on evidence never produced in the High Court and Court of Appeal.

Through their lawyer William Arusei, in an application dated December 20, 2023, the squatters want the Supreme Court to review its orders that grant the land to Mark Too’s family and companies.

They argue that the judgment by the Supreme Court requiring them to vacate the 25,000 acres of land is null and void from the beginning.

TUKO.co.ke understands that the review will be virtually mentioned on Wednesday, January 31, 2024.

The squatters argue that the judgment declaring their ownership of the parcel of land as null and void was obtained deceitfully.

“The judgment was obtained by fraud or deceit and or misrepresentation of facts by the appellants who had lost the case at the High Court and Court of Appeal, respectively,” the squatters’ lawyer argues in the application.

The squatters also questioned the competency of the Supreme Court in overturning orders that had declared them legal owners of the contested land.

They doubt that the court competently evaluated and analysed the evidence presented before it, reiterating that the judges relied on new evidence that it had initially refused to admit in a previous appeal ruled on in July 2022.

TUKO.co.ke understands that the Supreme Court turned down an amicus curiae application by the Law Society of Kenya on grounds that it was unconvinced the society would help the court interpret the valued owners of the land.

Sirikwa squatters fault Supreme Court

Sirikwa squatters also argue that the Supreme Court condemned Moi without hearing him by declaring his order of allocating them the land as unconstitutional.

The court had concluded that :

"Moi unconstitutionally violated and arbitrarily deprived Lonrho Agribusiness of its right over and interests in the land in favour of Sirikwa Squatters."

They want the court to review its decision, arguing that they, too, had been deprived of the right to own property that was allocated to them by the commissioner of lands in 2007.

“The judgment of December 15, 2023, sought to be reviewed risks implementation as the successful litigants may sub-divide, sell, dispose, change, transfer or in any other manner, interfere with the parcel of land to the detriment and to the disadvantage of the applicants,” Arusei states in the application for a review.

Arusei wants the CJ to reinstate the orders by High Court Judge Anthony Ombwayo on February 9, 2017, backed by the Court of Appeal judgement of November 15, 2022.

He argues that the matter is of great public interest and the issues complained of must be determined expeditiously.

The courts recognised the squatters as bona fide owners of the land on grounds that it was allocated to them by the former Commissioner of Lands, M Okungu, vide a letter to the Attorney General on July 17, 2007.

Too's land taken by government

Okungu’s letter to the AG indicated that the contested land belonged to Lonrho Agribusiness Limited, formerly EATEC Limited but was surrendered to the government for reallocation.

According to the communications between the government offices, Moi, on or about 1998, directly approved the relocation and settlement of Sirikwa Squatters on the parcel of land.

The commissioner indicated that the land was taken over by the government around the year 2000.

“The purpose of this letter is, therefore to confirm that the allocation to the Squatters Group by H.E. the President still stands and that this office has no objection to formalisation of the squatters’ occupation subject to normal due and legal process being put in place,” Okungu stated in the letter to the AG.

Arusei argues that the Supreme Court did not delve into all facts before issuing orders that dispossessed his clients the land.

He argues that Section 21A of the Supreme Court Act No. 7 of 2011 allows the Supreme Court to review its own decision, either on its own motion or after an application by a party.