Workers repair a fence on the land belonging to former Taveta MP Basil Criticos (inset) in Mokine area Taita Taveta County on June 19, 2023.
National Land Commission (NLC) has lost an application seeking to table a report of the Senate as evidence in a dispute over 2,700 acre parcel of land in Taita Taveta County belonging to former MP Basil Criticos.
The Court of Appeal rejected the application saying the introduction of the evidence will only serve to introduce fresh issues that were not argued before the trial court.
The court further said the evidence will only serve to cloud and confuse the issues that the court is mandated to consider on appeal.
NLC sought to produce a report by the Senate resolving that the suit property should be used to settle squatters.
According to the commission, the report will prove that the contested property has already been identified and reserved for public and as a result, that the pre-emptive rights of Mr Criticos had been extinguished.
Former Taveta MP Basil Criticos.
“We note further, that in this case, the appellant (Mr Criticos), who is the registered owner of the suit land was not called to testify before the Senate before the report in question was prepared. His constitutional right to be heard before an adverse finding was made against him or his property was, therefore, violated,” added the court.
Mr Criticos, a former Taveta MP sued NLC after it failed to renew the lease for the 2,700-acre Machungwani farm in Taita Taveta County.
The 99-year lease was granted in 1914 to Captain Morgan, who later transferred it to Criticos’ father George Criticos. It expired in January 2014 and efforts to renew it was frustrated by NLC.
The Environment and Land Court (ELC) in 2020 dismissed Mr Criticos’ case forcing him to appeal against the decision.
But before the appeal was heard, NLC asked to be allowed to produce the report saying it would assist the court to arrive at a just determination.
The Commission said the evidence was not within its knowledge at the time of the hearing of the petition before the ELC and the evidence will have an important influence on the appeal.
Former Taveta MP Basil Criticos at his farm in Taita Taveta County.
NLC said the appeal involves interpreting section 13(1)(b) of the Land Act, specifically balancing a past leaseholder's pre-emptive rights against the requirement of the land for public use.
It was contended that the Senate report met the criteria for admitting new evidence on appeal.
Further NLC submitted that the Senate report includes findings that Mr Criticos’ lease renewal process was potentially fraudulent.
It was also submitted to the court that the land was currently occupied by squatters and Kenya Prisons, and as of 2013, the former MP was only occupying 42 hectares of the large parcel.
Mr Criticos opposed the application arguing that allowing the new evidence would contravene the right to a fair hearing and the right to property, especially since he did not participate in the Senate proceedings where some of the new evidence originated.
He added that the Senate report was not part of the ELC proceedings and could not have been considered in the judgment
In the ruling, the court said it seemed to them that the evidence sought to be introduced at that stage, was intended to “make a fresh case on appeal” and to “fill up omissions or patch up the weak points” in NLC’s case
“We have no doubt in our minds that admitting the said evidence would be immensely prejudicial to the respondent (Criticos),” said the court.
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