The Environment and Land Court in Murang'a has ordered the Anglican Church of Kenya (ACK) to vacate a piece of land it has been occupying for more than 40 years.
Justice Grace Kemei said should the church fail to voluntarily vacate the half-acre piece of land in Kakuzi within six months, the family that is the legal owner will be free to obtain eviction orders.
When issuing the vacation order, the judge noted that the church had declined an offer by the plaintiffs to compensate them for the land at a consideration price of Sh600,000.
She said it would be unconscionable to force parties to a contract against their free will.
The plaintiffs, Francis Maina Mugo and Peter Maina Mugo, told the court that they are the registered proprietors of the land, having acquired it by way of transmission from their father Esbon Mugo Wainaina.
They said that the church, without authority, permission and any legal basis, occupied and hived out the portion of land and built a church despite their protestation.
The court heard that the church officials have been adamant in their illegal occupation of the land despite the demand to vacate.
Mr Mugo testified that their father, who died in 2014, was a member of the Ndabatabi Self-Help Group that bought 719 acres from a white settler in the early 1960s and the members were allocated individual plots in 1973 following subdivision.
He said the Church was not a member of the self-help group so it could not participate in the balloting process to warrant it being allocated any land.
ALLOCATED IN 1973
But the church in its defence said it has occupied the land since 1973 and had put up a permanent building with a vicarage as it all along believed it is the legal owner of the land.
It argued that it was allocated the land in 1973 by the self-help group during subdivision of the larger farm that measured 719 acres.
The Anglican Church was allocated land for building the church and nursery school, the court heard.
Mr James Kiranga Kamura, who is the principal administrative secretary of the ACK Church Thika Diocese, testified that Mr Wainaina’s land was consolidated together with that of the church and the nursery school and was registered under his (Wainaina’s) name.
He said it was only in 2015, after the death of Mr Wainaina, that the plaintiffs raised the issue.
In cross examination by lawyer Mwangi Ben for the plaintiffs, the witness stated that he was born in 1971 and became the administrative secretary of the diocese in 2016 and that his evidence was from information he gathered from the church records.
But the court noted that the witness failed to produce the said records for the benefit of the court hence his evidence was reduced to hearsay.
The court added that there is no indication of a church or a nursery school in the registry index map of the larger land which belonged to the self-help group.
Since the church had made submissions in respect to prescriptive rights arising from long occupation and possession of the land, the same were not contained in its pleadings or evidence.
"This is a critical step missed by the defendants who, though represented by counsel should have known better. It is to be noted that the defendant’s case is that they have occupied the land since 1973 to date. They, however, failed to raise a counterclaim or any such claim in the suit," said Justice Kemei.