Supreme Court rules Moi's title clean, revokes Sh1b damages

 

senior lawyer Zehrabanu Janmohammed

The Supreme Court on Friday vindicated the late former President Daniel Moi in a land tussle that pitted his family and Rai Plywood Company against the family of Noah Chelugui.

Not only did the highest court in the land find that President Moi’s title is clean, it overturned an order by the Court of Appeal requiring his family to pay Sh1 billion as compensation to the Cheluguis.

Chief Justice Martha Koome and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko unanimously found that there was no basis to fault the validity of the Moi family’s title.

The family was represented by senior lawyer Zehrabanu Janmohammed who is the executor of the late President.

“We have already traced the genesis of the suit property in the foregoing paragraphs of this Judgment. There is nothing on record to suggest that former President Moi acquired the suit property either fraudulently, or in a manner other than as indicated on record. What we have are claims of disenfranchisement of the second respondents (Cheluguis) from the ownership of the suit property,” the bench headed by Justice Koome found.

They observed that the Chelugui family had based its claim on allegations of loss of a title deed to the property.

In addition, judges noted that Mr Chelugui’s 85-year-old wife, Susan, and her son David Chelugui, had based their claim on an alleged fraud committed by one Stanley Metto.

 However, they ruled that from the onset Susan and her son did not give a precise and specific description of the land they were claiming.

According to the bench, the family also never included the property as part of Chelugui’s estate in the succession process.

The court found that both the Court of Appeal and the Environment and Lands Court failed to factor in the history of the land, therefore, arriving at a wrong conclusion.

“Would the Court of Appeal have affirmed the conclusions of the trial court regarding the ownership of the suit property given this evidence on record? We think not so.  So, on what basis did the two superior courts, arrive at the conclusion to the effect that, the second respondents were the rightful and absolute proprietors of the suit property, so as to kick in the provisions of Article 40 of the Constitution?” judges paused.

In the Appeal, the Moi family argued that the President’s title was clean as he followed the law while buying the property, which was previously in the name of the Government of Kenya as Parcel No.10.

The court heard that his ownership document was a first registration under the Registered Land Act (RLA) while Rai was an innocent purchaser.

Further, Janmohammed argued that it was unfair for the two courts below to entertain the case as a constitutional issue instead of a normal civil dispute.

She asserted that if the judgments by the lower courts had been allowed to stand, then there would be a floodgate of land cases filed as constitutional claims no matter how many years had passed.

The Attorney General on his part argued that although Constitutional cases do not have an expiry date, they ought to have been filed within reasonable time.

 The Supreme Court agreed with the senior lawyer and the AG that Chelugui ought to have filed a case in 1983.

The court found that his family sent a demand letter on April 3, 2014, addressed to both the former President and Meto.

They found that there was no plausible explanation why it took 31 years to lay a claim to the land.

“It is clear that between 1983 and 2014, neither Noah Chelugui nor his estate pursued any legal redress aimed at vindicating his claim of a violation of his constitutional right to property. Such delay could not be anything else but inordinate, warranting a credible explanation,” Judges ruled.

The High Court in Eldoret had ordered the former president to pay the family of Noah Chelugui (now deceased) Sh1.06 billion for a 53-acre prime land currently owned by Rai Plywood Company in Eldoret, Uasin Gishu County.

The order was affirmed by Court of Appeal Judges Patrick Kiage, Kathurima M’inoti, and Mbumbi Ngugi.

The land was part of a 3,300-acre farm bought jointly by Chelugui, Nathaniel Kiptalam Langat, Thomas Kipkosgei Yator, Cherop arap Maritim, and William Kimngeny Letting from a South African settler, Jacob Hendrik Engel Brecht, in 1965.

The land was named Kapking’ong’o farm, after the five men that purchased it. Each got 620 acres while Huruma Company Limited acquired 140 acres.

Thereafter, the five proprietors resolved to subdivide it. This was documented in the applications to the Uasin Gishu Land Control Board in 1976.

On September 21, 1983, Eldoret Municipality/Block 15/10, which was carved from L.R 10492, was closed on subdivision to parcels numbers 237, 238, and 239 respectively.

Block 238 was registered in the name of Metto, while 238 was under Chelugui. In the meantime, 239, which was 53 acres was registered under Mzee Moi.

“The second respondent’s Certificate of Confirmation of Grant in the Matter of the Estate of Noah K. Chelugui does not include the suit property, Eldoret Municipality/Block 15/239, or its subdivisions in the schedule of assets. It only lists Noah Chelugui’s parcel, Eldoret Municipality/ Block 15/237,” Supreme Court Judges observed.

Judges questioned why the Chelugu family was only after one subdivided piece on claims that it was irregularly subdivided while they too benefitted from the same exercise.

The court allowed the appeals filed by the Moi family.

By Kamau Muthoni