A private company, Crossley Holdings Limited, has gone to court claiming ownership of 11,000 acres of the controversial Miwani land and wants occupiers to be evicted.
The court action puts the planned leasing of the collapsed Miwani Sugar mill in jeopardy.
Crossley filed suit in the Environment and Land court, claiming the expansive parcel, LR.7545/3(i.r No.21038)
The company has sued the Agriculture CS as the first respondent, the Agriculture and Food Authority as the second, the Kisumu county government as the third and the Attorney General as the fourth.
Suit papers say the land has ever been the property of Miwani Sugar Company (1989) Ltd, nor has ownership been charged in favour of the Kenya Sugar Board, Kenya Sugar Authority, The Delphis Bank Limited, the Government or any other respondent.
The company wants an order of possession of the land enforceable against every respondent, including their agents, representatives and those purporting to work for or represent Miwani.
“We therefore want a permanent injunction prohibiting each and all the respondents together with their agents, officers, workers, servants and representatives from interfering with the petitioners’ ownership, possession and title to the land, at the same time stopping them from selling or leasing the land,” the court documents read.
The company further wants an order of general damages for loss of income and use of land including special damages totalling Sh6 billion for loss of income for the cultivation and production of sugar cane.
Alternatively, Crossley wants a total refund of the money they used to purchase the land, which is valued at Sh4.6 billion.
“Alternatives and without prejudiced to the prayers above, Sh752 million with interest thereon at bank rates from 24th December 2017 to date together with Sh4.6 billion being the current market value of the land without interest thereon from the date of filling this petition herein until payment in full and further loss of income until the petition is heard and determined,” the documents read.
The company’s director Buggar Singh in his sworn affidavit with authority from the board of directors said the company acquired the land as a result of a public auction following an advertisement in the newspaper by M/S Jogi Auctioneers and handbills in 2007.
Singh said the company on December 24, 2007, placed a successful bid of Sh752 million and was declared the purchaser of the land since they were the highest bidder.
He said the land is a private land and is not public or community land
The petitioner together with eight others were charged with various offences relating to the purchase of the land in the chief magistrat’s court in Kisumu. The petitoner and others were acquitted while two others had cases to answer.
Sukhwinder Chatte, Ian Maina, Philip Odongo, Epanaito Okoyo and Crossley Holdings Limited were acquitted for lack of evidence. The DPP appealed their acquittal.
Their co-accused Adulakadir Elkindy, a former magistrate, and Moses Osewe, were found to have conspired to defraud the state firm of 9,394 acres between May 21, 2007, and January 30, 2008.
In October 2019, the Nairobi High Court allowed the appeal of the DPP and ruled that all the accused persons be put on their defence.
They appealed the High Court decision.
However Sugarcane activists in Kisumu county led by th Kenya Sugarcane Growers Association (KESGA) secretary general Richard Ogendo expressed disappointment with the petition.
They are seeking to be enjoined in the suit.
Ogendo said the suit is an abuse of the court process and meant to hurt the planned leasing of the sugar mill, which farmers have been eagerly waiting for.
“We are surprised that the same company has come back again to claim the nuclear estate of the company on cases which had been decided up to the Court of Appeal,” he said.
He said the Miwani land belongs to the community of Miwani and it should have a say in the land from which they are yet to benefit after giving it to the government to build a factory.
“We want to state that this is community land and we will be going to court to put up a preliminary objection because we believe this matter had been decided,” Ogendo said.
Sugar activist Charles Attyang said Miwani should not be left behind in the ongoing leasing process and they have all these years never enjoyed the fruits of the land.
Attyang appealed to Chief Justice David Maraga to ensure the Suprme Court ruling is adhered to.