The Kaputiei Maasai community has sought legal redress in a bid to reclaim disputed land occupied by the Kamba community in the Oloirien area of the Makueni-Kajiado boundary.
The land in question, according to claims made by the Kaputiei eminent elders led by Julius Ntayia, measures 200,000 acres.
Speaking on Friday in Ilkilunyeti area of Oloirien after meeting with Environment CS Keriako Tobiko, the elders led by Ntayia said a legal process had begun to reclaim the said land.
The other part has been taken over by the Kenya Wildlife Service and added to Chyulu National Park.
CS Tobiko, who was on an official tour of Masimba area of Kenyewa/Poka Ward in Kajiado East constituency visiting various schools that had been affected by human/wildlife conflicts, dropped at Ilkilunyeti shopping centre on Thursday, August 20 to listen to the elders appointed by the community to pursue the said land.
Tobiko told the elders to pursue the matter through the legal justice system and appealed to them to restrain from taking the law into their hands.
“In the current century, we cannot afford to fight in seeking justice but to address issues through negotiations and courts of law,” said Tobiko.
The disputed land which lies along the Makueni and Kajiado boundary is also a grazing area for livestock from the two communities that had been set aside by the Kenya Wildlife Service as a dispersal area for wild animals.
The two communities, over some time now, have been fighting over the land. At least 5 people have been killed in clashes spanning three years.
“We have today met with our people on the ground and have told them not to take the law into their hands, but to remain put and wait for us to pursue this matter through the courts,” said Ntayia.
He said they advised their people who had been displaced by the clashes to return to their destroyed property and build new houses as the government is being approached to handle the matter.
Ntayia, who was flanked by other leaders that included Kajiado former governor David Nkedianye, Kajiado East MP Peris Tobiko and Maasai professionals led by Nicholas Matiko, said they have given their lawyers 7 days to enjoin the community in an appeal case filed by KWS against an earlier high court ruling that gave the Makueni community the right to occupy the disputed land.
Mikululo Ranching Co Limited from Makueni in 1995 sought an order of permanent injunction restraining Kenya Wildlife Service from evicting its members.
In a ruling dated February 22, 2019, and delivered in Machakos by Justice O. A Angote ordered a permanent injunction restraining KWS and Makueni county government from evicting the ranchers in Mikululo.
Angote stopped the eviction of the plaintiff (Mikululo Ranch) and its members, families, servants, and/or agents from the land measuring 17,326 ha (42813.4784 acres).
He said the grant for L.R. No. 24362 for land measuring 73,427ha be revoked, and in its place, a grant is issued to KWS as depicted in boundary plan number 204/51 gazetted on January 26, 1983. KWS was ordered to pay the cost of the suit.
This is where the Kajiado-Maasai question came in.
Consequently, after the ruling, the KWS went to the high court to appeal against it in a civil application No. 89A of 2019.
The matter was put before the three high court judges; W Ouko, R N Nambuye, and M K Koome.
The KWS sought an application for stay of execution and injunction pending the lodging, hearing, and determination of an intended appeal from the decision of the Machakos Environment and Land Court (O. Angote, J.) dated 22nd February 2019 in ELC Case No.475 of 1995.
The dispute between the applicant (KWS) and the Mikululo Ranch (1st respondent) specifically was over the occupation and use of land located in Mikululo area which the applicant insisted was part of the Chyulu Hills National Park, while the 1st respondent stated the same land as part of their settlement. The portion in question measures 17,362 Ha (the suit property).
It was the applicant’s case that it holds Grant No. IR 84005 for L.R No. 24362 which is the entire area of the park for a term of 999 years from 1st February 2000.
Mikululo Ranch, on the other hand, contended that the suit property was Government trust land initially under the mandate of the former Masaku County Council and that its occupation by its members was authorized by that Council; that its members have been in occupation of an area measuring 42,000 acres; that vide a Gazette Notice dated May 2, 1995, the applicant extended the park by 76.0 square kilometers which include the 42,000 acres that the 1st respondent’s members were in occupation of; that following this gazettement, the applicant started demolishing the 1st respondents’ members’ homes and burning their farm produce arguing that the area was part of the park.
In their response, the three judges made the following remarks through Justice Ouko.
“We are not able, from the pleadings, to tell specifically the area in dispute as the applicant has itself expressed the fear that human settlement and activities may extend beyond the portion occupied at the time the judgment was rendered,” said Ouko.
Ouko added; “The order that commends itself to us is to stay the decision of the court below made on February 22, 2019, to the extent that, pending the hearing and determination of the intended appeal, the 1st respondent’s members shall not extend their settlement and other activities beyond where they are presently; and that they shall not destroy or encroach on the forest and other natural resources in the forest”.
Ouko said the applicant will, on the other hand, not evict the 1st respondent’s members from the portion of the suit property in their occupation.
The ruling was made on December 6, 2019.
The Kajiado community said they will seek the indulgence of the Independent Electoral and Boundaries Commission to help in mapping the boundary between them and their Makueni counterparts.
The border matter has had the attention of provincial administrators from both sides of the divide but peace remained elusive as the Makueni communities accuse their neighbours of “unwarranted attacks”.
On the other hand, the Kajiado community have accused their neighbours of maintaining an “army” of 100 youth who they claimed have been terrorising them.