The men who dared to sue retired President Moi over land

Former MPs Koigi wa Wamwere, Otieno Mak'Onyango, Wanyiri Kihoro Njeru Kathangu and an activist outside the High Court. PHOTO | FILE | NMG 

In Summary

• The farmers were later slapped with a bill of Sh8.2 million by Moi’s lawyer Juma Kiplenge.
• Although the case is pending at the Court of Appeal, Deputy Registrar of the High Court Damacline Bosibori taxed the amount members of the community are to pay Moi’s lawyer at Sh8,267,666.

By DAILY NATION

When Daniel arap Moi ceased being Kenya's President in 2003, a number of people took him to court over several matters.

Among them were farmer and neighbour Malcom Bell, who accused the former head of state of taking 100 acres of his land opposite Moi High School, Kabarak.

The school had possessed the land since 1981 and used it to cultivate food crops.

LAND CASE

Mr Bell sued Moi and the school in 2003, seeking to recover the farmland measuring more than 1,000 acres for their failure to honour his late father’s conditions for them to sink a borehole, construct a cattle dip and supply electricity.

But Justice Apondi exonerated Moi from blame and ruled that the school had acquired adverse possession of the land.

However, Mr Bell's appeal saw justices Martha Koome and Hannah Okwengu overturn the ruling and give Moi six months to vacate the land.

\Moi and Kabarak also filed an appeal and successfully sought permission to be allowed to move to the Supreme Court but five judges of the apex court dismissed the matter, stating that there was nothing of great public importance in it, ending a 10-year court battle.

Deputy Chief Justice Kalpana Rawal, judges Philip Tunoi, Mohammed Ibrahim, Njoki Ndung’u and Smokin Wanjala dismissed awarded costs to Mr Bell, saying neither the case not the arguments raised were unique and that it was not of general public importance as alleged.

It emerged later that the parties, the retired President, the school and the farmer entered an agreement to settle the dispute out of court.

“While the ruling was pending delivery (by the Supreme Court), the parties amicably settled all case in a manner that promoted good neighbourliness,” a notice to parents, guardians, friends well-wishers and the general public stated.

COUP ATROCITIES

Former Alego Usonga MP Otieno Mak’Onyango sued the government and Moi for atrocities he suffered when he was detained after the failed coup in 1982.

Trial judge Rawal absolved Moi of any blame but slapped the government with a bill of Sh20 million for the torture the former editor and politician suffered.

Justice Rawal said in the ruling that the evidence that was presented led to an “irresistible conclusion that the detention of the plaintiff was unconstitutional, unjustified and unlawful”.

Mr Mak’Onyango accused the government and Moi of violating his fundamental rights as enshrined under sections 70, 71, 72 and 77 of the former Constitution.

While exonerating Moi, Justice Rawal said it would be unjust and unwarranted to make a head of state personally responsible for failures or misdeeds of state officers without showing his direct participation.

“The head of state is not synonymous with the person holding that post unless he is shown to be involved for personal gains or vendetta,” said the judge.

DETENTION CASE

In 2011, former Deputy Director of Intelligence Stephen Mwangi Muriithi sued Moi seeking close to Sh2 billion for unlawful detention and occasioning his financial loss.

Justice Jeanne Gacheche ruled that year that Mr Muriithi’s detention without trial was not for the purpose of preserving public security but for Moi to secure commercial advantage and interfere with his liberties and rights.

The retired President appealed and in 2014 and the Court of Appeal saved him from paying the former intelligence chief over Sh1.9 billion.

The appellate court set aside the decision saying Moi was not personally responsible for Mr Muriithi’s detention, as it was an action of the state.

Justices John Mwera, Daniel Musinga and William Ouko also said Mr Muriithi failed to prove the losses he claimed to have suffered when in detention.

“Claims by Mr Muriithi that he jointly had three companies with Moi to ascertain percentage of shares were not proven. His claims that Moi sold off and transferred some of the properties were also not proven,” ruled the judges.

PASTORALISTS' CASE

A group of 249 pastoralists sued Moi and the African Wildlife Fund (AWF) over an expansive parcel of land but lost the case in 2017.

Led by Joseph Lekamario, the group laid claim of the 17,105 acre parcel in Laikipia North.

The case was, however, dismissed by Justice Lucy Waithaka, who said, “I find that [evidence] does not show the plaintiffs at any time material to the suit, dispossessed the registered proprietors of their interest in the suit property, or that the registered proprietors at any time material to the suit discontinued their possession of the property."

Evidence in court showed Moi initially owned the land but transferred17,105 acres to the AWF.

The court heard that the group occasionally grazed its animals on the land and that the owners had, on many occasions, engaged the local community to discuss social benefits in order to sustain wildlife conservancy.

Moi told the court that he bought the property on or about 1998 from Ol Pejeta Ranching Limited and that there were no squatters. He kept livestock before he transferred it to the current owner.

The AWF is said to have approached Moi to sell the land to it for conservation, because it was a crucial wildlife migratory corridor.

The farmers were later slapped with a bill of Sh8.2 million by Moi’s lawyer Juma Kiplenge.

Although the case is pending at the Court of Appeal, Deputy Registrar of the High Court Damacline Bosibori taxed the amount members of the community are to pay Moi’s lawyer at Sh8,267,666.