A battle for thousands of acres of prime land held by American multinational firm Del Monte Kenya Ltd, where it is accused of transferring the parcel to a private company, will continue in court after Del Monte and the Kiambu County Government were blocked from seeking to have the case struck out.
The court dismissed an application to strike out the case filed by a lobby group over sale of what they term as public land in Thika.
The ruling by Justice Lucy Gacheru came amid persistent battles to control thousands of acres of prime land held by the fruit processing firm with reports that the lease documents are set to expire in two years’ time.
The firm, together with Kiambu County government, County Director of Physical Planning Mr James Maina and Nick Waweru wanted the judge to dismiss the case filed by a lobby group known as the Kandara Residents Association.
In their preliminary objections, the applicants told court that the case was time-barred and was against the legal principle of ''res judicata'', a legal doctrine that bars continued litigation of a case on same issues between the same parties.
In its objection, Del Monte had told court that the suit is time-barred by the provisions of Section 7 of the Limitations of Actions Act as the cause of action is alleged eviction of the plaintiffs’ ancestors from the parcel of land dating back to 1895.
The court heard that such a claim of land ought to be instituted within 12 years of the cause of action.
But, after going through court papers of the plaintiffs, Justice Gacheru found that the foundation of the case is the determination of the National Land Commission (NLC) that was made on February 7, 2019.
Part of the said determination directed that on expiry of the lease held by Del Monte, a suitable amount of land should be set aside and held in trust by the Kiambu and Murang'a county governments for purposes of resettlement and public utilities.
“It is not in doubt that the National Land Commission is empowered to look at historical injustices and make a recommendation and that it is on the basis of the said determination that the suit was filed,” said justice Gacheru.
She ruled that it cannot be said that the suit is based on historical injustices and thus time-barred.
The judge, however, found that the lobby group lacks ''locus standi'' to sue on its own but can do so through a representative. She ordered that its name be struck out from the court papers.
As a result, the members will be represented by the group's chairman, Mr Karira Kimara.
The group accuses Del Monte of transferring a public land parcel to a private company known as Ananas Holdings Limited, which sub-divided the property and started disposing of it. The transfer happened in February 2010.
Members of the group are questioning the process of acquisition by Ananas and the subsequent sale of the same to third parties.
The group claims the land was public and not available for transfer to the private company. It says the Ministry of Lands irregularly allowed the transfer while the seller lacked ownership documents such as certificate of lease or letter of allotment.
While urging the court to dismiss the case, Del Monte had argued that the matter offends the doctrine of sub-judice as there exists two other cases dealing with issues connected to those raised in the case.
Through law firm of Njoroge Regeru & Company Advocates, the company said the lobby group had failed to establish an independent cause of action as the issue of capacity to sue is critical.
It was its submission that the court must be able to identify the parties with precision. Further that it stands to suffer immense prejudice if a party which has no capacity to sue is allowed to do so as they would not know who to pursue for costs in case the suit is dismissed.
The other four defendants, through Ms Keziah Mbugua, Legal Counsel for the Kiambu County Government, wanted the case struck out on grounds that the matter had been determined at interim stage by another Lands Court in Murang'a.
Ms Mbugua explained that there had been another case and previous proceedings between some tenants of the suit premises and the defendants and, therefore, parties cannot be litigating over the same matters in different courts.
But the court found the matters were not similar. The court also said it was satisfied that Mr Karira, being the chairman, is an official of the lobby group and had the authority to represent it, hence he has ''locus standi''.
Consequently, the court found that while the group lacked the ''locus standi'' to sue, the chairman does.
