Ol Pejeta was always the grazing land of the Maasai until 1911 – when the Maasai were pushed to the north and south after the two agreements of 1904 and 1911 with the Colonial government.
In between, it was owned a Saudi Arabian billionaire and gun merchant, Adnan Khashoggi, by former Attorney General Charles Njonjo – and later on by retired President Daniel arap Moi.
Recently, the Maasai and Samburu tried to get back this land from President Moi – in a case that opened old wounds and which shows how it is hard to use the adverse possession law to reclaim land.
For starters, Ol Pejeta Ranching Limited was allocated this land in Laikipia on June 14, 1962 and issued with a title deed for LR No.10068 Laikipia.
In the Moi case, the Maasai told the High Court that their descendants and forefathers remained in Laikipia and in particular the suit land from time immemorial and practiced their culture and economic lifestyle for years on the land uninterrupted. They also said they have “never been aware of the alienation of the suit land to any other party including (former President Moi)”.
Ten of the claimant said that they entered the Ol Pejeta property in at different times as from 1984 and “have been in open, continuous, uninterrupted and peaceful possession” of the property for more than twelve years – the mandatory period for the right of adverse possession to commence.
Although they knew the land as Kisangei, they later came to know that officially, Moi called this land Elands Down while another part was known as Kabarak Farm.
Festus Baithibua had worked as a senior fencer with Ol Pejeta conservancy since 1978 and he told the court that the conservancy had approximately 3000 herds of cattle and said the Maasai were occasional trespassers in Ol Pejeta.
President Moi bought this property in 1997 and the transfer was effected on 21 September, 1997 togerher with the livestock that previously belonged to Ol Pejeta Ranching.
Richard Highnoor was one of the managers who worked in the Conservancy before it was bought by President Moi and he continued to work there first as General Manager and later as Chief Executive Officer.
“At that time the entire land was fenced and paddocked…but there were occasional illegal grazing and we engaged the local community to discuss social benefits due to the community to sustain wildlife conservancy,” he told the Court.
That position was also taken by Giles Pretty Jones, the livestock manager of Ol Pejeta conservancy since 1998, when he told the court that he had not witnessed any human settlement in the ranch. He said that President Moi used the conservancy for cattle keeping together with African Wildlife Foundation, a leading international conservation organization focused solely on the African continent. For more than 40 years, AWF has concentrated its efforts on building the capacity of Africa’s people and institutions to manage natural resources and to protect the unique and rich biodiversity of the African continent.
When Moi was the sole owner of the conservancy – before he sold part of it to African Wildlife Foundation- there were no squatters in the farm which was protected by the General Service Unit, like all other properties owned by the former President.
Charles Tanui, who worked as the farm manager of Kabarak farm between 2004 and 2008 told the Court that Ol Pejeta was invaded after Moi sold the land but they were evicted. On the fridges of these land, they had built a village which they called Kisangei, according to Peter Mwangi Wangare, the Assistant chief Segera sub-location.
Actually, when Kathleen Fitzgerd, who was the African Wildlife Foundation director of habitat conservation visited the property in 2008 before they bought it, she says that she saw no squatters. African Wildlife Foundation was interested in conserving this property because it was “a critical wildlife migratory corridor”. She opined that subdivision and allocation of the suit property would lead to suffering of wildlife.
African Wildlife Foundation had hoped to integrate wildlife conservation with use of the land by the local communities and the wanted to allow the local communities to use the land and rehabilitate the management center, fence the property to manage human-wildlife conflict, improve water provision, internal fencing, roads and employ a manager for wildlife.
But when they failed to agree with the Suguroi community on the way forward, the community entered Ol Pejeta by force and destroyed the properties and developments therein.
“Consequently, the government moved in and evicted them…the selfish interests of one community derailed the benefits due to the neighboring communities,” said Kathleen.
The court was told that the various groups entered the property on different dates and could not seek ownership through adverse possession.
“Evidence of the plaintiffs’ witnesses on when they took possession of the suit property is contradictory…some of the witnesses stated that they found the property vacant, others stated that it was occupied; some accused others of lying. Others confirmed that they were living outside the suit property while others confirmed that they never had quiet enjoyment of the suit property,” Moi’s lawyer told the court.
But the Samburu community lawyer said that this was an ancestral land. He told the court that the case was more about historical injustices and was premised on the technical area of the law on adverse possession. He had asked the court to be guided by the values, principles and objects of the constitution of Kenya 2010.
He also asked the court to side with the Samburu by “ understanding the realities of their position, the challenges they face in using the court system, their lack of familiarity with court procedures, the imbalance between the parties, differences in lifestyles between the parties and the significance of dates and times which partly impacted on their case”.
“Great injustices were committed during colonization through seizure of huge tracks of land belonging to communities, and we fault the National Land Commission for failing to discharge its mandate of investigating and redressing historical injustices,” said the lawyer.
But as the case progressed African Wildlife Foundation transferred the property to Kenya Wildlife Service on 4th November, 2011 bring in a third party to the case.
Part of the mistake made by the Samburu is that they failed to make Ol Pejeta Ranch a party to the suit and this saw the judge remark: “Because the plaintiffs did not make Ol Pejeta a party to this suit, I am of the view that their claim for adverse possession can only be restricted to the title held by the 2nd respondent (President Moi)”.
While initial claim was against African Wildlife Foundation, it was found that it had never been the registered proprietor of the suit property and that at all times the property was owned by President Moi.
After the ownership of the suit property changed to Kenya Wildlife, the Samburu amended their pleadings to accord with the changed circumstances of the case but did not amend their supporting affidavit to reflect the changed circumstances of the case.
“Owing to failure by the plaintiffs to amend their entire pleadings to reflect the changed circumstances of their case, it is submitted on behalf of Kenya Wildlife, that the orders sought cannot issue against it,” ruled the Judge.
“We also note that the petitioners claim to the land is predicated on what the petitioners claim historical injustices were visited on the community by the colonial masters who required that they move out of what they claim were ancestral lands to pave way for white settlement. We do not think the court would be the right forum for the petitioners to ventilate their claim which is founded on historical injustices.”
The court further observed:
“The constitution acknowledged there could have been historical injustices in the manner land issues were handled by past regimes and hence among the functions and mandate of the National Land Commission established under Article 67(1) of the Constitution is to investigate historical injustices and to make recommendations for redress.
“In our view it’s the National Land Commission that has the mandate to investigate into historical land injustices and make appropriate recommendations for redress. The court is not the appropriate organ to carry out the investigation and/or inquiry and where the law has made provision for a state organ or institution to carry out a specific function that institution should be allowed to carry out its mandate. The court should not usurp the roles of other state institutions,” said Justices L. Waithaka and Ngaah Jairus before dismissing the case.