Last Friday, a legal team representing the Kipsigis and Talai communities was making final preparations in their quest to file a case at the United Nations Human Rights Council over alleged abuses and illegal occupation of their land by British multinationals following the lapse of a deadline to settle the matter out of court.
“We gave the British government until May 31 to come to the table for an arbitration process but they failed. Consequently, we are asking the UN to appoint a rapporteur to investigate cases of rape, burning of houses, forceful removal of populations and illegal and unlawful dispossession of ancestral land of the Kipsigis and Talai communities,” lawyer Kimutai Bosek, who is leading the team, told the Sunday Nation.
Mr Bosek said that they will also file a case at the European Court of Human Rights.
The Kericho County government is, among other things, demanding land occupied by the tea estates in the dispute.
If Governor Paul Chepkwony had his way, multinational tea companies would by now have paid the local community Sh2 trillion as compensation for illegal occupation of land belonging to the Kipsigis.
The money is what the county is demanding as mesne profits from 1902 to date.
Mesne profits refer to what a landlord recovers from a tenant for wrongful occupation of land.
The battle for compensation and repossession of 200,000 acres occupied by the multinationals has dragged on in Kenyan and British courts for the past 15 years.
The firms include James Finlay, Unilever, George Williamson, Sotik Highlands, Sotik Tea Company Limited, Changoi/Lelsa Tea Estate, Tinderet Tea Estate, Kaimosi Tea Estate, Kapchorua Tea PLC, Kipkebe Limited, Nandi Tea Estates, Kaisugu Limited and Emrok (EPZ) Tea Factory.
So far, the team has won the first round after the National Land Commission in March ruled that the British government should apologise for the injustices inflicted against the Kipsigis and Talai victims that led to, among other crimes, loss of their ancestral land.
The commission further ruled that the British government, the multination companies and the Kenyan government should pay victims mesne profits for the loss of the use of land from 1902 to date and to pay reparations to the direct victims of the historical land injustices.
It also determined that rates and rents should be enhanced and expired leases should not be renewed without the approval of the county government.
“The land in Kericho was not taken by the Kenya colonial government, which came into place as from 1920 to 1963 when Kenya was a colony, but from 1895 to 1920 when Kenya was a British protectorate.
"Under international law, when a country is a protectorate, the protectorate power cannot exercise domestic jurisdiction including alienation of land. The Crown of England is thus the first land-grabber in Kenya,” lawyer Bosek explains.
According to documents from the Kew Gardens National Archive in the UK, Kericho was declared crown land at Buckingham Palace in England.
The determination by NLC appears to have opened a Pandora’s box.
In a Kenya gazette notice dated March 1, 2019, NLC ordered that all 999-year leases be converted to the constitutional requirement of 99 years.
The leases include land occupied by multinational firms in Kiambu, Bomet, Kericho, Murang’a and Nandi counties.
As a result of the directive, some of the firms affected in Kiambu County include Del Monte, Kakuzi Limited and Makuyu Sisal.
High Court judge James Makau recently issued orders prohibiting Kandara residents from invading land occupied by Del Monte pending the determination of a case filed by the fruit processing company.
The judge however declined to stop a determination made by NLC directing the resurveying of the land.
The residents argue that Del Monte has no proprietary rights despite occupying the land.
The survey was to establish whether there is any variance between the parcel leased and the one occupied.
The NLC had ordered any surplus land to be surrendered to Kandara Residents Association and the county government in the ratio of 70:30.
Despite the issue of Kakuzi Ltd pending before the High Court, NLC directed the firm to surrender “all public utilities on their land including schools, markets, police stations, and hospitals, public roads of access, wayleaves and easements to the national and county governments as appropriate”.
The NLC also ordered that all leases for land held by Kakuzi in Murang’a County not to be renewed until the historical land injustice claim is heard and determined.
Nandi Governor Stephen Sang this month announced that the county would initiate a bid to repossess land occupied by multinationals if they would not increase the amount of rates that they pay. The companies occupy 150,000 acres in the county.
Already, Nandi County has increased the annual rates from Sh100 to Sh5,000 per acre, a decision that the companies have vowed to challenge in the High Court. Should the county have its way, it will earn Sh750 million.
In Kericho, the multinationals pay Sh300 per acre annually but Governor Chepkwony is demanding Sh10,000 per acre.
But these plans are being slowed down after the multinationals moved back to court to request for a judicial review of the NLC decision at the High Court in Nairobi on April 25.
However, in a reply dated April 26, the Kericho County government claims that the matter is the preserve of the Environment and Land Court. The matter is scheduled for hearing on July 8.
According to archived documents, the Kipsigis and Talai were dispossessed of their land and confined to the so-called Lumbwa Native Reserve, a dry area that was not arable, away from their beautiful, fertile and lush land.