Like many other African countries, Kenya has had her fair share of historical land injustices.
It’s a shame that more than 58 years after independence, there are millions of citizens who have no fixed abode to call home and their generations have led miserable lives for decades.
Clearly, land is the proverbial thorn in the flesh and has been the persistent cry throughout the history of the nation.
Thousands have lost their lives fighting for their ancestral land but the quagmire deepens with each passing day. The problem is cryptic; a web that even State officials cannot slither through; a confusion that is apparently congenial to corrupt officials. Political will is lacking.
The problem is more exacerbated in Coast than any other region. Land injustices started with the arrival of the Arabs, yet all post-independence government have failed to address the issue. As a result, thousands of squatters have turned to the courts for redress with little success.
In various petitions, squatters claim they inherited the land from their forefathers when they challenge possession of such properties by either private developers or leading institutions. They often argue that their forefathers were violently evicted from their own land.
In one of the cases filed by 734 people against five companies and three private developers, the squatters said they were rendered landless because their forefathers “were not exposed”.
They speculated that in 1908, a group of well-connected people got registered as owners of the suit properties, despite the indigenous communities being in occupation of the properties.
More than 155 new cases, excluding judicial reviews, miscellaneous applications and appeals, were filed at the Environment and Land Court between January and June 31 this year. This means at least one case is filed at the registry daily.
A caseload report indicates that in the 2020/21 financial year, 343 land disputes, including appeals and petitions, were filed at the ELC in Mombasa, while 155 others were filed in Malindi.
In the same period, 272 land cases were resolved in Mombasa while 240 others were concluded in Malindi. As of March 31, Mombasa had 2,146 pending cases while Malindi had 844.
Across the country, there are 14,888 land cases pending in courts. Mombasa has the highest number at 2,146, followed by Milimani in Nairobi at 1,335 and Eldoret at 1257.
By the length of their stay in court, Mombasa has 1554 cases. Some 766 have been in court for three years while 595 have been pending for between three and five years. About 193 are more than five years old.
Malindi has a backlog of 598, where 429 have been at the courts for between one and three years, while 168 others have spent between three to five years. Across the country, land related matters have a case backlog of 11,322.
With 2,146 land matters pending before Mombasa court, it is highly likely that it will take longer for new cases to be finalised. The chances of a case filed today being determined within a year is almost zero.
There are only three judges that deal with land disputes in the region, Justices Charles Yano and Sila Munyao in Mombasa and Justice James Olola is in Malindi.
In some instances, litigants have been forced to replace their loved ones, who filed their cases in court but died before cases were concluded.
For instance, Lalitchandra Durgashanker Pandya sued more than 106 squatters in 2006, but he died in 2014, leaving the dispute unresolved. The case was defended on his behalf until the judgment was delivered on June 9 this year.
Mr Ephraim Baya, who also sued, claiming adverse possession, also died during the pendency of his case. His written statement was used as evidence.
Many people have suffered in court corridors as cases take years to be concluded. Before 2017, Mombasa law courts had three land judges; Justices Yano, Anne Omollo and Loice Komingoi. Justice Komingoi was later transferred to Nairobi.
Mombasa Law Society boss Mathew Nyaben says the shortage of judges has affected timely delivery of justice as the few available are overwhelmed.
“The problem has led parties to resort to self-help as the judicial system is slow. The judges are overwhelmed,” he says, adding that Kilifi and Lamu have many land disputes.
“The current situation has made it difficult for advocates to tell when a case is likely to be concluded. Desperation may lead to corrupt practices due to dwindling revenue,” he offers.
Mr Nyabena recently urged Chief Justice Martha Koome to fill Justice Komingoi’s post and consider the recruitment of an additional judge.
“The land courts need special attention by increasing manpower. Many murder cases in the criminal division of the High Court are due to conflict involving family members fighting over land. We even have a rescue centre in Coast for old people who have received death threats due to land matters,” states Mr Nyaben.
