Agribusiness company Eastern Produce Kenya (EPK) has won a battle for the ownership of 550 acres of land in Nandi County, which was being claimed by a farmers' group.
A bench of three judges of the appellate court quashed the determination made by the National Land Commission in 2017 granting the contested land to Kimasas Farmers’ Co-operative Society.
The society had claimed that its forefathers had lived on and cultivated the land before the arrival of Colonial settlers, who subsequently took over the land and converted the local inhabitants into squatters.
NLC had, in a gazette notice dated March 1, 2019, granted 550 acres of the tea estate to the society.
Attempts by EPK to challenge the NLC’s recommendations were dismissed by the Environment and Land Court, forcing the tea company to move to the Court of Appeal after locals allegedly invaded the estate.
In the decision on Friday, the Court of Appeal faulted the lower court for dismissing EPK’s case without affording it an opportunity to be heard.
“In our view, the learned Judge fell into error in treating the grant of twenty-one days within which to file a response, standing alone, as sufficient evidence that the appellant (EPK) had been accorded a fair opportunity to be heard,” said the court.
The judges said an opportunity to file a response is meaningful only if the party is first furnished with the material necessary to enable it to respond to.
“We are equally unable to accept the proposition that the appellant's failure to file a response, in the circumstances disclosed by the record, necessarily amounted to a waiver of its right to a fair hearing,” said the court.
The company said it has owned the expansive tea estate in Nandi East since 1955. In the 1970s, the company decided to donate 81.6 hectares (about 201 acres) of LR 9285 to the community members.
There was correspondence with the parties as well as the Ministry of Co-operative Services and the Commissioner of Lands on the excision of land from the parcel identified as LR 9825.
On November 12, 1980, the society was issued with a certificate of lease registration as a co-operative society by the Ministry of Co-operative Development.
The society later amended its by-laws to provide for the acquisition of movable and immovable property, and the same was approved by the Ministry on June 6, 1991.
Before that, the company had, on April 4, 1986, written to the Commissioner of Lands stating that it had gifted the society approximately 81.6 hectares on LR 9283/2.
EPK later discovered that there was a typographical error in the reference to the title, and in a letter on June 20, 1986, it sought to cancel the letter and reiterated that the society had been gifted 81.6 hectares of LR No 9825 and not LR 9283.
The letter, however, disappeared, but EPK says that after review, the letter was altered in respect to its 550 acres.
Further, EPK says it gifted Mr Simon Kipketer Sawe LR 9285/4, and after the excision of LR 9285/2 and L.R 9285/4, the company remained with LR 9285/3
Then, the company was known as Eastern Produce and Estate Company, but it changed its name to Eastern Produce Africa Ltd and transferred the land to Kibabet Estate Ltd, a sister company. Kibabet later changed to Eastern Produce Kenya Ltd.
The society then filed a complaint to the NLC claiming that their great-grandfathers lived on the parcel of land and that they were gifted 550 acres by Mr PG Scott in 1986.
Both parties were summoned before the NLC, but EPK sought more time to get the letters, which were missing.
The company said NLC had published in the Kenya Gazette on March 1, 2019, making various recommendations, including allowing the claim by the society, cancelling all the subdivisions and granting the contested land to Kimasas Farmers’ Cooperative Society Ltd.
The NLC further directed the chief land registrar and the Ministry of Lands to implement the decision.
