All eyes on Wednesday will be on a decision regarding whether a relative of Narok Governor Patrick Ntutu will be allowed to keep a parcel of land, which the county government maintains is part of the world-famous Maasai Mara Game Reserve.
Mr Livingstone Kunini Ntutu argued before the Environment and Land Court (ELC) that he was lawfully allocated the land in 1997 and that a title deed was issued in his favour in 2000.
Mr Ntutu said the controversial land was de-gazetted in 1992, removing it from the Maasai Mara National Reserve.
The county government, on its part, submitted that the title deed could not stand because the process for its acquisition was unlawful.
The county government maintained that any document issued contravening the applicable law was a nullity and of no legal effect.
The 3,978.5-acre parcel was valued at more than Sh3 billion in 2010 in a valuation tabled before Justice Charles Mbogo.
The long-running dispute was first filed in 2000 by Mr Ntutu and Ol Kiombo Ltd, which also laid claim to the expansive land, but the matter was settled by consent in May 2002.
Then Ol Kiombo Ltd acknowledged that Mr Ntutu was the registered owner of the land and the lease granted to it (Ol Kiombo) by the defunct Narok County Council was no longer binding or subsisting.
The Narok County Council later changed its mind and filed a petition before the High Court in March 2009 challenging the agreement.
After hearing the case, Justice Pauline Nyamweya (now a Court of Appeal judge) set aside the consent in November 2005 and ordered the case to proceed to a full hearing.
Justice Nyamweya ruled that the consent was in contravention of the Constitution and that the title to the suit land was also unconstitutionally and illegally acquired, as it was marred with fraud and irregularity.
The judge further ruled that it was in the interest of justice that the issue of constitutionality and legality of title be determined conclusively and that it would be against public policy in the circumstances to uphold the consent judgment.
Not satisfied with the decision, Mr Ntutu moved to the Court of Appeal and the decision was set aside by a bench of three judges in April 2015.
The Narok county government then escalated the matter to the Supreme Court and in a decision in 2018, the apex court granted interim orders restraining Mr Ntutu and Ol Kiombo from taking possession of the land.
A bench presided by Chief Justice David Maraga then directed the case be heard afresh before the Environment and Land court.
“… the appropriate remedy, in this case, is that we shall allow the determination of the status of the title to the suit land, in the public interest and so that such a determination is made to bring certainty in this matter,” the apex court ruled.
“Consequently, we find that referral of this matter back to the Environment and Land Court and not the High Court which no longer has jurisdiction on such a dispute to determine the constitutionality and legality of the title to the suit property.”
In submissions filed in court, Mr Ntutu told the court that from as early as the mid-70s, he was in constant communication with the Ministry of Tourism and Wildlife to exercise from the boundaries of the then Mara Game Reserve, three areas, Talek, Siana and Olooloo.
According to Mr Ntutu, the notice of intention to declare cessation of the Talek Area as part of the Maasai Mara National Reserve was first published in a Gazette Notice No. 145/1984.
Subsequently, Gazette Notice No. 412/19923 was published and the Talek Area ceased to be part of the Maasai Mara National Reserve.
He said upon cessation of Talek Area being part of the Maasai Mara National Reserve, the Principal Land Adjudication Officer, Narok Adjudication District, published a notice dated May 6, 1997, establishing an adjudication section known as the Talek Adjudication Section.
The boundaries of the Talek Adjudication Section, he said, were spelt out in the notice.
“In the final analysis, it is the Plaintiff’s (Mr Ntutu) case that his title to the suit land was legally and lawfully registered and issued to him after following all the processes under Land Acquisition Authority (LAA) and Registered Land Act (RLA). The Plaintiff is the absolute proprietor of the Suit Land,” Mr Ntutu said through senior counsel Kioko Kilukumi.
Mr Kilukumi urged the court to hold that the acts of the public officers involved in the Talek Adjudication process were done lawfully, procedurally, rightly, and regularly.
The county government opposed the case and contended that only 154 parcels of land were created during the adjudication process and the contested land did not form part of the degazetted area (CIS Mara/Talek/155).
“From the foregoing, it is discernible that the Plaintiff’s land falls out of the degazetted area and into the Maasai Mara Game Reserve. The Title held by the Plaintiff is thus a nullity,” senior counsel Okong’o Omogeni and Ian Mbithi submitted.
Mr Omogeni submitted that the degazettement of the Talek area was for a specific purpose and for the benefit of the residents of the Koyiaki group ranch, which Mr Ntutu was not part of.
He further said the Land Adjudication Act was not applicable to the Masai Mara Game Reserve yet the land falls within the Maasai Mara Game Reserve.
“How then could the plaintiff claim that his land was declared an adjudication section on 6th May 1997 and he got a Title Deed registered under the Registered Land Act?” he posed.
Mr Mbithi submitted that the fraudulent activities of public officers cannot afford Mr Ntutu any protection under the law.
Attorney-General Dorcas Oduor, who had initially challenged the acquisition, submitted that the contested land is registered in Mr Ntutu’s name after the conclusion of an adjudication process.
The attorney-general said Mr Ntutu was allocated parcel number 155 in the adjudication section as per the records held in the Department of Lands.
“The honourable Attorney General humbly submits that neither the 1st defendant (Mr Ntutu) nor the 2nd defendant (Ol Kiombo) claimed the adjudication process under the Land Adjudication Act. The plaintiff did assert a claim, was recorded as owner, and received a valid title. Consequently, the land was removed from its Trust Land status and became the Plaintiff’s private property,” Mr Allan Njoroge Kamau, deputy chief state counsel said in submissions filed in court.
Mr Omogeni, however, pointed out that the position was a contradiction of Mr Wilfred Muchae, who worked as the Director of Surveys under the Ministry of Lands.
Mr Muchue said there are no supporting survey records held by the Director of Surveys that were executed with respect to the land in question.
“Parcel of land Number CIS-Mara Talek/155 was not surveyed as part of the subdivisions survey of L.R. No. 20640- (perimeter parcel of Talek Adjudication section), which gave rise to the subdivisions parcels CIS Mara Talek/1- CIS Mara Talek/154,” Mr Muchae said.
