When former powerful Nyanza Provincial Commissioner Isaiah Cheluget was allocated 5,800 acres of land in Narok South in 1974, he did not foresee a situation where 50 years later, his family would be in the corridors of justice seeking to evict invaders.
The 600 people who invaded the land 14 years ago and subdivided it among themselves have thrice lost their claim to the agriculturally productive land.
“They forcibly kicked us out, subdivided the land, and erected structures around 1999 and 2000. They stole and vandalised some of the property and drove away cattle, kicking workers out,” said Johnstone Kipkoech, the eldest son of the late Cheluget.
“That invasion kicked off a legal battle which we have thrice won in court, including at the High Court and the Court of Appeal. The courts have held that the property legally belongs to our late father,” said Mr Kipkoech
But despite their legal victories, the family cannot access the land due to hostility from the occupants, who are suspicious of any visitor.
Cheluget, who was also a prominent farmer and businessman, died on June 26, 2017, at Aga Khan Hospital in Kisumu, and was buried at his home in Litein, Kericho County.
A group of journalists on a fact-finding mission in the area were kicked out by the occupants, who did not want any photographs taken or interviews conducted.
In the latest legal battle, the 600 occupants lost an appeal before the Environment and Lands Court in a judgment delivered on June 11, 2024.
Judge Mbogo Gitonga of the Environment and Lands Court dismissed a case filed by Charles Kones, on behalf of the occupants, saying they had no legal claim to the property belonging to the family of the former administrator.
The case filed on July 31, 2018, relates to LR No. Narok/Cis-Mara/Ilmotiok/54, registered between 1974 and 1980 as the property of Mr Isaiah Kiplangat Cheluget by the government.
Mr Johnstone Kipkoech Langat, Julius Kipkirui Langat, Laurence Kimutai Langat – as personal representatives of Cheluget (deceased), Registrar of titles Narok County, Narok County surveyor and Attorney General were cited in the case filed by Mr Kones as respondents.
The occupants sought an order of cancellation of the land title deed, that they be allowed to enter the suit property, demarcate and survey respective portions of land occupied by the plaintiffs.
They also sought a permanent injunction restraining the defendants from interfering with the plaintiff’s possession and use of part of the suit property, restraining the defendants from selling, charging, or otherwise dealing with the property. But the court rejected the request.
In the court documents, the plaintiffs claimed to have occupied the land before 1970, yet documents show the demarcation and adjudication process was done in 1974.
On their part, the defendants in court documents stated that the plaintiffs had no legal claim to the land and were out to “mislead the court to justify their illegal occupation of the property where they are trespassers in a breach of the deceased’s estates right to property under Article 40 (1) of the Constitution”
“The plaintiffs have illegally used, and continue to reside and use the said land in contravention of the law. The plaintiffs are hostile to the extent they have been involved in acts of arson and pilferage against the deceased’s property and assets,” read the court document.
Documents filed in court states that the land was initially owned by the Purko clan of the Maasai community and was given to the defendant by Ole Sandale- who was a senior chief.
“Cheluget (deceased) was in peaceful enjoyment of the land until 1999 when some people invaded it claiming to be members of the Segemian community, thus disrupting farming activities on the property. The deceased representatives filed a criminal complaint against some of the invaders, who were charged in court and convicted for a jail term,” the defendants averred in court documents.
It emerged that the plaintiffs filed Originating Summons which was dismissed, leading to an appeal against the court decision, which was also dismissed by the appellate court.
The defendants stated that “the manner in which Cheluget became the owner of the suit property cannot be litigated afresh in view of the decision of the Court of Appeal which was a final decision.”
“If any of the plaintiffs had any customary law right on the suit property, such rights would have been extinguished upon registration of the land under the repealed Registered Land Act. The title was acquired through a legal and open procedure,” the defendants stated in court documents.
The Registrar of titles, Narok County, County Surveyor and Attorney General stated in court documents filed on May 28, 2019 that the land legally belonged to Mr Cheluget, and that the plaintiffs were in blatant violation of Section 7 and 26 of the Limitation of Actions Act.
“This is a gross abuse of the court process to say the least,” ruled Justice Gitonga when he dismissed the case.
“A decision has been made both by the High Court and the Court of Appeal over the subject matter and concerning the plaintiff’s ownership claims over the subject matter, yet they still attempt to devise a tactic to claim similar ownership of the same subject matter,” Justice Gitonga stated.
He noted that the plaintiffs were using all available means necessary to claim ownership of the property and “trying to introduce a different cause of action (with the matter having been dealt with by the High Court and Court of Appeal) and introduce a different set of new petitioners.
