Justice Jemutai Kemei’s ruling was of importance since it not only laid basis on how courts will in future be addressing historical claims, but also settled a claim that was taking a political turn in both Kiambu and Murang’a.
Del Monte — one of the largest pineapple plantations in Africa — manages nine blocks of land, whose leases expire between 2019 and 2022.
In the first case, a group known as Kandara Residents Association was claiming 10,000 acres of the pineapple plantation and was opposed to a renewal of the lease before their claim before the NLC was settled.
The group had filed a memorandum of objection to the extension of the leases with NLC on grounds of historical injustice. They claimed that the plantations were part of communal land before it was alienated illegally.
They claimed that if the injunction was not granted, the historical injustice meted on the members would continue.
While the Kandara group had told the High Court that it lost the land during the colonial period, Del Monte said it acquired the land in 1968 and that it had made huge investments in the land in form of financial and human capital.
It also told the court that the case was time-barred since the land was adjudicated more than 120 years ago.
The group had relied on minutes of a meeting attended by the commission in which the NLC chairman said, “all requests and demands under the law and the Constitution must be addressed carefully not to give an indication that Kenya is working against the interests of foreign investors [and that] the request for 10,000 acres by Murang’a County Assembly and Kandara Residents leaders shall be subjected to the rights and interests of Del Monte as investors on the one hand and on the other hand those of Kandara Residents as stipulated by the law and the constitution.”
While dismissing the case, however, Justice Kemei said the group had no rights on the Del Monte property. “The right is a matter of fact which needs to be proven. It is not the evidence which constitutes the cause of action but it is the facts to be proven.”
The judge ruled that the group wanted to be involved in the renewal of a lease, but added that they would not suffer any damages if the lease was renewed. Again, they had failed to prove any rights or interest in the suit properties.
“Damages in their nature is a compensation to place a claimant in the same position which otherwise would have been if it were not because of the action of the other party,” Justice Kemei said, and added: “There are, therefore, no damages which [Kandara group] are entitled to legally from Del Monte, or any of the defendants.”
The judge said that while addressing historical injustices, the NLC is entitled to make a raft of forms of compensation such as restitution, land compensation, resettlement on alternative land, sale and sharing of profits.
“It is, therefore, not true that the plaintiffs stand to suffer loss that cannot be compensated with damages,” the judge said.
In the second case determined last week, Justice Kemei threw out a case filed against the company by Kenya National Chamber of Commerce Murang’a branch, which wanted 1,500 acres.
This case was important because the judge ruled that the High Court had the mandate to address historical injustice matters.
“The jurisdiction of the court to hear and determine historical land injustices has neither been ousted by Article 67 of the Constitution nor the National Land Commission Act,” Justice Kemei said.
In the ruling, the ELC said that any claimants must first seek leave of the court out of time as dictated by section 27 of the Limitations of Actions Act. It said that since Del Monte acquired the land in 1968 and since the law limits the time for only 12 years to seek justice, that limit expired in 1980.
