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Court dismisses herders’ appeal over eviction from disputed Nanyuki land
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|Court dismisses herders’ appeal over eviction from disputed Nanyuki land by Kenyans247(1): Thu 28, January, 2021 09:14am|
The Employment and Labour Relations Court in Nyeri has dismissed an application by a pastoralist community seeking to block an order for their eviction from a 2,190-acre parcel of land in Nanyuki owned by a settler.
In a ruling, Justice Mary Oundo dismissed the request to allow the Kisiriri community to live on the disputed Jennings Farm pending the hearing and determination of the appeal case.
The judge noted that the herders, comprising about 3,000 pastoralist families from Samburu, Maasai and Turkana communities, did not prove ownership of the property.
She said there was no evidence the community had applied for an occupation permit to live on the riparian land located between Pessi and Ewaso Narok rivers.
“The applicant did not also prove that it had been granted a permit that showed allotment of the reserve by the relevant authorities,” said the judge.
As a result, Justice Oundo said she was not convinced the herders would suffer any substantial loss if the respondents, Harry Jennings and his wife Lucy Wambui, were allowed to remove the herders from the property.
“The appellant was obligated to show the loss that it would incur keeping in mind that it neither proved the existence of the suit property nor its ownership with the same being riparian land,” said Justice Oundo.
The community, through its secretary Wilson Leleshao, had filed an appeal on the grounds that it was at a high risk of being evicted from the property on which it was entirely dependent, with no other place of settlement.
Lived on land for over 40 years
Mr Leleshao said they had lived on the contested property for over 40 years after it was allocated to them by former President Daniel Moi and that they survived on farming as their means of livelihood.
In its memorandum of appeal, the community faulted the lower court’s decision for not awarding it damages after its property was destroyed through an eviction process it termed illegal.
“The trial court failed to consider the undisputed evidence presented by the plaintiffs during the hearing after it was wrongfully evicted without prior notice,” said the community through its lawyer.
It also argued that the chief magistrate did not distinguish Jennings Farm from the suit property it occupied.
In reply, the respondents told the court that despite the property being adjacent to the rivers, the herders had completely barricaded the river frontage, claiming its ownership.
They argued that they were the legal riparian owners but the appellants illegally occupied the water reserve and part of their property.
Suffer loss of property
The Jennings said that if the order of stay was granted by the court, they would suffer loss of property and threats of life as the herders had continuously been terrorising them.
“The court would also be sending a negative message inciting and encouraging pastoralist communities to invade and overturn private ranches which, in turn, will fuel war between the ranchers and pastoralists in Laikipia,” said the respondents.
In her judgment on August 19, 2020 Magistrate Lucy Mutai declared the community illegal occupants of the plots of land registered as LR5197 and LR2426.
She ruled that the plaintiffs did not have any title document to prove ownership.
Magistrate Mutai also noted that the herders could not settle at a gazetted area without permission from the relevant authorities.
The court had been informed that the Water Resources Management Authority (Warma) and the National Environment Management Authority (Nema) had previously attempted to evict the nomadic group from the area with no success.
Ms Mutai also ruled out the community’s request that it be compensated Sh20 million after it lost its property on April 28, 2018 through a forcible eviction process.
She maintained that the court could not establish whether the property lost was of that value.
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