Herders sustain fight with Moi estate, US charity for wildlife park

The land has been subject of controversy since 2009, when the community sued claiming ownership and in 2016, when the trial judge asked them to hire choppers to transport judicial officials to the land for a site visit.

In the latest development, members of the community wanted to amend the pending appeal to introduce arguments concerning historical injustice and dispossession of ancestral land, as they challenged a 2017 verdict of the Environment and Lands Court Judge Lucy Waithaka to dismiss their claim.

They also wanted to amend one of the grounds of appeal to read: “The judge erred in law and in fact by failing to give due consideration to the values, principles and objects of the 2010 Constitution, to reach a fair determination of the suit. In particular, the learned judge failed to duly consider the principle of security of land rights while addressing historical injustices.”

But Justices Wanjiru Karanja, Jamila Mohammed and Aggrey Muchelule last Friday declined the application, ruling that fresh claims could not be canvassed at the appeal stage of a dispute.

"A fresh claim cannot be canvassed before this court as it would necessarily call for filing of affidavits with the attendant cross-examination of the deponents," said the judges.

They also found that the new claims touched on entities such as Ol-Pajeta Ranch, which is not a party to the court case.

"The issue of historical injustices was not before the trial court. In any event, it is a claim that ought to be separately and distinctly pleaded and thus responded to by the other party. Introducing this claim would also affect other parties like the Ol-Pajeta Farm Limited and the National Land Commission who were not parties before the trial court," said the judges.

The application had been opposed by the Kenya Wildlife Service (KWS) and the AWF, who argued that if allowed, the proposed amendment would have had the effect of altering the claim that was prosecuted by the pastoralists at the High Court.

Lawyer Jenipher Catherine Ombonya, for KWS, said the original claim was purely based on adverse possession and that the appellants did not state that the property was ancestral land.

Further, they described the application as incompetent, claiming it was filed under the wrong rules and that the application was being brought to court six years late without reasons for the delay.

The land, which is also described as Elland Downs or Kabarak Farm, is situated in Laikipia North.

The pastoralists moved to court in 2009 suing the late President Moi for transferring the land measuring 17,105 acres to KWS at Sh400 million. KWS later transferred the ownership to AWF.

The legal dispute rose to the public limelight after the Lands and Environment Court in Nyeri ordered the herders to hire choppers to transport judicial officers and lawyers involved in the case for a site visit.

Justice Lucy Waithaka on March 10, 2016, directed the community to hire the choppers and meet all other logistical needs to facilitate the court’s visit after hearing that the suit land could only be accessed through air travel.

The community wanted ownership of the land reverted back to them based on the doctrine of adverse possession, claiming they had occupied it uninterrupted since 1984. They said they held the native title through their ancestral inheritance.

They alleged that during the transactions they were in occupation of the land and were relying on the same for sustenance of their livelihoods.

They also based the claim on the land rights under the Anglo-Maasai Agreement where their forefathers were forced by the British colony to sign agreements allowing white settlers to settle on the community's lands.

The court heard that after the Anglo-Maasai Agreements of 1904 and 1911, the Samburu community ancestors were pushed by the European settlers northwards and southwards to create room for settlement.

However, Justice Waithaka dismissed the adverse possession claim upon finding that President Moi owned the land for 11 years from 1997 to 2008 after buying it from Ol Pejeta. The pastoralists were later evicted in March 2009.

"The evidence on record including the plaintiffs’ own pleadings show that the plaintiffs had been evicted from the suit property as of March, 2009, way before the time within which they could raise a claim against Moi's ownership of the land had lapsed," she said.

She explained that if the herders were at all in adverse possession of the suit property, that possession was terminated before the 12-year time stipulated in law to acquire title to land by adverse possession accrued in their favour.

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