The family of former President Daniel arap Moi, who ruled Kenya for 24 years, and sugar baron Jaswant Rai, have been ordered to compensate a widow over Sh2 billion for a 53-acre land grabbed in 1983.
A presidential directive that Mr Moi gave the Land ministry to forcefully take ownership of the prime property in Eldoret town will now see his kin dig deep into their inheritance to pay for his sins.
Court of Appeal judges Patrick Kiage, Kathumira M’Inoti and Mumbi Ngugi have dismissed two appeals against a 2019 judgment that ordered for the compensation package to Susan Chelugui, the 88-year-old widow of former chief Noah Chelugui and her son David.
Mr Moi sold the land to Mr Rai’s family 24 years after the forceful acquisition that the courts have now confirmed to be illegal.
Rather than evict Rai Plywood (K) Limited, the courts opted to order for monetary compensation equivalent to the value of the 53 acres. The Rai family runs a conglomerate of businesses, including sugar milling that supplies an estimated half of Kenya’s total demand for the sweetener.
Mr Moi’s estate had, through its administrator Zehrabanu Janmohammed, appealed against High Court judge Antony Ombwayo’s 2019 order that Ms Chelugui and her son be paid Sh1.06 billion, which was the value of the property.
The former President filed a notice of appeal, but died eight months later. For over one year, his family was handling a protracted succession process in court, which delayed the appeal Mr Moi intended to pursue.
As the file was gathering dust in the Court of Appeal, Kisumu, registry, interest was piling on the awarded sum.
In 2021, Ms Chelugui sought to join the Moi succession case demanding the Sh2 billion be set aside for her award. Another claimant, Dr George Kiongera, sought similar orders over a Sh2.5 billion claim from a separate case.
Both applications to join the succession case were dismissed, but Ms Chelugui may now smile all the way to the bank following the appellate judges’ decision.
Lawyer Ochieng Oduol argued, on behalf of Mr Moi’s estate, that Justice Ombwayo was wrong in using the constitution to determine the suit, insisting that the set of laws in place at the time should have been the governing principle.
But the Court of Appeal has now ruled that Article 40 of the constitution, which dwells on right to protection of property, can be applied retrospectively hence can be used to determine disputes that arose before promulgation of the 2010 laws.
“With guidance from the above provision on the manner in which the constitution should be construed, we think that Article 40 of the constitution is one of those constitutional provisions that is not limited in its application. It can, and must in appropriate cases, apply retrospectively. It seems quite clear to us that the right to property is ring-fenced by the constitution and courts must be vigilant to ensure that the State and those who wield State power do not by might negate the right,” the Court of Appeal judges ruled.
Nathaniel Lagat, one of the businessmen, who partnered with the ex-chief, Mr Chelugui, to purchase the property in 1965, had also sought to have Justice Ombwayo’s 2019 judgment dismissed.
Mr Lagat argued that the High Court case should not have been heard in his absence and that he should also be compensated.
The businessman added that he had sought to be enjoined in the High Court case but that his application was dismissed.
Justices Kiage, M’Inoti and Ngugi have now ruled that Mr Lagat should have challenged dismissal of his application, not waited for the suit to end then challenge the High Court judgment.
Ms Chelugui’s lawyer Ahmdednasir Abdullahi asked the court to revise the compensation package upwards by using a valuation that showed the land was worth Sh1.7 billion at the time of Justice Ombwayo’s judgment.
Mr Abdullahi added that Justice Ombwayo unfairly dismissed a request for Sh244 million compensation for lost profits because the Cheluguis would have used the land to earn a living.
But the Court of Appeal ruled that Ms Chelugui and her son did not file an appeal against Justice Ombwayo’s judgment hence the award cannot be revised.
Henry Wambua, who was Director of Surveys in 1982, said he received verbal instructions from then State House Comptroller Abraham Kiptanui to assess the 53-acre land, and he complied.
Mr Wambua informed the Commissioner of Lands W. S. Maithuka through a letter that detailed the orders from above.
In dismissing the suit, the Court of Appeal has now agreed with Justice Ombwayo that the letter from Mr Wambua to Mr Maithuka amounted to State interference that violated Mr Chelugui’s right to own property.
Mr Chelugui died in 2005 after battling illness. Two years after his death, Rai Plywood (K) Limited occupied the property and started growing wheat on it.
Rai Plywood’s lawyer Kibe Mungai argued that the firm was an innocent purchaser for value, having paid an undisclosed amount to Mr Moi.
Mr Abdullahi argued on behalf of Ms Chelugui that neither Mr Moi nor Rai Plywood filed any sale agreement or evidence of the alleged transaction between them.
Mr Abdullahi said the fact that Mr Moi and Rai Plywood signed a joint affidavit shows that the two were joined at the hip, hence equally culpable.
