The State has suspended the prosecution of five officials of a squatters’ cooperative society who had been charged with invading a 5,048-acre piece of land in Makueni County.
The prosecution on Tuesday said the Director of Public Prosecutions (DPP) Noordin Haji had recalled the file for review and to give further directions.
The review was prompted by a protest the officials of Mamukii Society lodged with the Office of the DPP claiming that the decision to charge them was malicious, ill-informed, and an affront to their constitutional and fundamental rights.
“I have been instructed not to proceed with the hearing of this case against Pauline Kaanzo, Joseph Mutuku Kalii, Katola Mailu Mwatu, John Mumina Mainga, and John Mwangangi Kimonde pending a review and further directions from the DPP,” State Prosecutor Irene Magolo told the trial magistrate, Elizabeth Muiru.
Ms Magolo asked the court to suspend the trial for 30 days to enable the DPP to review the case and then give fresh directions on the matter. The magistrate allowed the request and fixed the case for mention on December 5, 2022.
Forcible entry
The officials are facing charges of forcible entry into the land owned by Robert Allan Stanley, the grandson of a former white settler, malicious damage, trespass, and preparation to commit a felony.
The five allegedly invaded and took possession of the ranch, valued at Sh3 billion and situated at Ngaamba Mukaa sub-county, Makueni, on April 11, 2021. They are also accused of destroying a perimeter fence worth Sh20,000.
Mr Mwatu is separately charged with being in possession of five bows, 29 arrows, two machetes, two hammers, and two knives at Kiou village, Kasikeu location in circumstances that indicated he was so armed to harm, maim, or kill. The five have denied the charges and are out on bond.
In a separate suit filed at the High Court challenging the criminal case, the five alleged that their prosecution arose from another case in which they are seeking orders to be resettled on the ranch from which their ancestors were allegedly evicted 75 years ago by the white settler.
Mr Stanley told the High Court that over 2,500 families seeking to be resettled on his land have no constitutional basis to claim ownership.
He said the land was purchased by his grandfather, Robin Woodcraft Stanley, on October 1, 1947, at a price of Sh37,860.
In an affidavit filed through lawyer B.M. Musau, Mr Stanley said no cogent evidence has been presented to the court to warrant the grant of the reliefs sought. He is opposing the resettlement of the evictees on the land and the quashing of the criminal charges preferred against the officials of Mamukii Society. The land is registered under Stanley and Sons Limited.
“There is no evidence by any members of the society (Mamukii), their parents, or grandparents, or ancestors of ever occupying or at any moment having possession of any part of the company’s property,” said the lawyer.
He added: “Consequently the applicant in the case against the DPP – Pauline Mwikali Kaanzo, the treasurer of Mamukii – or any of the members of the society have no any legitimate or proprietary rights over the suit property.”
Outlining how the land in dispute was acquired, Mr Stanley said the company is the legally registered owner of the land known as L.R. No. 1748 Kiima Kiu/Kalanzoni and Mukaa ward, Kilome in Makueni county.
He said since its registration, the land has never been available for alienation either under the principle of native land or otherwise under the indigenous customary law, as alleged by the petitioners’ lawyer, Boniface Njiru.
Sell freeholds
Mr Stanley also said he is aware that Kenya became a British Protectorate 127 years ago (in 1895) and all land under the Protectorate became Crown land and was vested in the Commissioner (later named Governor) in trust for the British Crown.
In 1901, Mr Stanley said, the East African (Lands) Order-In-Council was issued by the British government conferring upon the Commissioner of the Protectorate power to dispose of all public land.
“Subsequently, through the Crown Lands Ordinance of 1902, the Commissioner was empowered to sell freeholds in Crown land to any person or to grant leases,” Mr Stanley said.
He added: “It was pursuant to the Crown lands ordinance at the time that Robin Woodcraft Stanley on October 1, 1947, in accordance with a premium of Sh37,860 acquired an indefeasible title of the 5,048 acres that constitute the company’s property.”
Upon independence and pursuant to Section 75 of the repealed Constitution 1963, the government guaranteed the first owners absolute and indefeasible title to the property.
Robin Woodcraft Stanley transferred the property to the company upon issuance of a valid title on May 29, 1975.
The dispute is also at the Court of Appeal, where the squatters are fighting the decision of High Court judges George Dulu and Teresa Murigi to dismiss their suit for resettlement. BY DAILY NATION