Court hands businessman reprieve in Kari land dispute

Influential businessman Jared Kangwana has moved to court seeking possession of a five-acre parcel carved out of the 80-acre Kenya Agricultural Research Institute (Kari) station in Kisii municipality and ostensibly allocated to him 22 years ago by then President Daniel arap Moi.

He said Mr Moi allocated the land to him on a 99-year lease in September 1992, and the grant was registered at the Land registry the following year.

But Kari’s Kisii branch director Oscar Magenya has sworn an affidavit saying the land was set aside for public use, but some individuals, including Mr Kangwana, allegedly encroached on the property illegally.

Mr Magenya informed Justice Samson Okong’o at the hearing that the property in question featured prominently in the report of the Ndung’u Commission of inquiry into illegal/irregular allocation of public land of 2003.

Furthermore, he said, the institution had written to the Permanent Secretary in the Land ministry seeking the cancellation of Mr Kangwana’s title.

SOUGHT INJUNCTION

Mr Kangwana filed the suit on May 13 last year, seeking a permanent injunction restraining Kari from interfering with his portion of land and its subsequent development.

Kari opposed the suit and tabled documents in court to show the disputed parcel was part of the 80 acres allocated to the institution by the Kisii District Commissioner on February 20, 2001.

Kari is yet to obtain a title for the disputed land.

Mr Kangwana said he had engaged a private company, Aghen Enterprises, to fence the parcel and undertake further development, but Kari employees stopped the work.

On August 15 this year, Mr Kangwana got a temporary reprieve after Justice Okong’o of the Kisii High Court ruled that he had established a prima facie (a fact accepted as correct until proved otherwise) case against Kari with a probability of success in full trial.

GOVERNMENT LAND

Justice Okong’o said under Section 3 (a) of the Government Land Act (now repealed), the President had the powers to make a grant of any interest in unalienated government land.

He said Kari had not adduced evidence to show that the land had been reserved for public use when it was allocated to Mr Kangwana in 1992.

Further, the judge argued that Kari had not indicated when it acquired ownership of the 80 acres because no document of title was adduced before the court.

Justice Okong’o noted that the only documents tabled in court by Kari to claim ownership were the minutes of a meeting held at Kisii DC’s office on February 20, 2001.

He disagreed with the arguments that the DC had powers to allocate public land.

Again, the judge observed that when Kari was purportedly allocated the 80 acres by the DC, Mr Kangwana’s portion had already been given to him.

The judge absolved Mr Kangwana of any blame and held that there was no evidence he acquired the property unlawfully, fraudulently or through a corrupt scheme.

He said the Ndung’u report tabled in court was of no assistance in the dispute, arguing that while the titles of other parcels in the report were recommended for revocation, the commission recommended that the title issued to Mr Kangwana, who was perceived to be one of the politically connected investors during the Kanu era, be investigated.