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 CASE BRIEF          

Kassim Ali kama (suing on his own behalf and on behalf of 610 residents of Mabatini, Nyumbasita, Vidzini, Gonjora, Fahamuni and Kigwede Area- Msambweni-Kwale County) -VERSUS- Kwale International Sugar Company & 8 others.

Background

Vidziani is located in Msambweni Sub County in Kwale County. Msambweni lies under the ten miles Coastal strip which formerly belonged to the Sultan of Zanzibar. The communities around Msambweni are mainly Digos with some pockets of Durumas andKambas.

The land in disputeL.R.NO. 27742 which was believed to be trust land is located in Msambweni. The government had allocated 45,000 acres of the land to the defunct Ramisi Sugar Company. In 1988, the factory relocated to Uganda leaving behind the lease of 45,000 acres behind and Kshs 66 million loan from the Bank of India which the government paid later on.  In 2006, the Government of Kenya, seeing an opportunity to save the sugar sub-sector, identified and approved new investors, interested in reviving the Ramisi sugar factory  and re-leased 15,000 acres of the original 45,000 to Kwale International Sugar Company Limited, better known as KISCOL. However there was no clear demarcation as to the extent of the 15,000 acres leased to KISCOL.

What is the Conflict?

Although all 17 villages have ancestral ties to the land, conflict has been experienced in six villages that have been affected by KISCOL operations namely:

  • Nyumbasita
  • Vidziani
  • Gonjora
  • Mabatani
  • Fingirika and
  • Kingwede

Some of the inhabitants go back to the pre-colonial era since they have occupied the land uninterruptedly throughout the colonial and post-colonial periods as their land was leased to but unused by the Ramisi sugar factory. Thus, these villages have developed the perception of land ownership due to their continual occupation of their ancestral land.Other inhabitants took possession after the collapse of the Ramisi sugar factor, believing that the company would not be coming back.  As the Ramisi sugar factory land lease grew closer to its expiration in 2013, these villages began to believe that the land would soon be returned to them and thus begun planting long-term crops such as mango and coconut trees and constructing permanent homesteads. KISCOL has depended on the Government to fulfill its duties to resettle and compensate the communities on the leased land, and, while the Government claims to have procedurally done so, many communities still occupy the land.  Thus, KISCOL and the community constantly clash as both parties contend for their rights to the same land. Over 600 families have been affected by this conflict.

Court Case

In 2011, the 6 villages represented by the main petitioner Kassim Ali Kassim, now deceased, filed a petition in court against the following:

  • Kwale International Sugar Company………………………………..1st Respondent
  • County Council of Kwale……………………………………………2nd Respondent
  • District Land Registrar – Kwale….……………………………….…3rd Respondent
  • The Senior Registrar Of Titles…………………………………………4th Respondent
  • The Commissioner Of Lands…………………………………………..5th Respondent
  • Treasury Of Kenya………….…………………………………………….6th Respondent
  • The Permanent Secretary Min. Of Agriculture…….………7th Respondent
  • The Provincial Administration…………..…………………………..8th Respondent
  • The Hon. Attorney General……………..………………………………9th Respondent

The petitioners sought the matter to be certified urgent and various injunctive orders issued against the respondents.

  1. A ruling was made on 26th October 2011 by Honourable Lady Justice Hannah M. Okwengu who gave the following orders:
  • The petition was certified urgent
  • Conservatory orders were granted restraining the 1st respondent Kwale International Sugar Company Limited by itself, servants and Agents for any other person acting on its own authority from entering, encroaching, alienating and evicting the petitioner on the land until determination of the matter.
  • The application be heard inter-partes on the 2nd November, 2011.
  1. Following these orders, the next step that was taken by the petitioners with regard to this petition was filing two contempt applications one dated 1st December 2011 and another dated 19th August 2014 to which the first respondent filed the replying affidavit dated 25th September, 2014 in opposition thereto. A ruling was delivered on 4th June 2016 by Honourable Justice Edward Murithi in which the 1st respondent was found guilty of contempt and directed to pay a fine of Kshs. 500,000.
  2. The 1st respondents further went to court seeking the lifting of the injunctive orders issued in 2011 citing that they were granted ex-parte, have existed for over six years and that there was material disclosure of facts. Through a ruling by Justice Ogola dated 13th March 2018, the court lifted the conservatory orders as prayed by the 1st
  3. On 16th April 2018, the matter came up for submissions and a directive from the court was that the Deputy Registrar and the office of the Attorney General do a site visit on 25th April 2018 and table a status report.
  4. On the material day the Deputy registrar and advocate representing KISCOL were not available forcing the visit to be rescheduled to 26th April 2018. On this day advocate for the petitioners, the DR and KISCOL were present. The AG conducted his visit on the 27th April 2018.
  5. The submitted status reports did not point out to any signs of recent demolition or tension in regards to demolitions which was the basis of dismissing the petitioners application which sought to set aside the 13th March 2018 ruling. The court gave a ruling that the status quo be maintained until the completion of the matter. The case is scheduled for 25th September 2018.

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