Biwott, state agencies to pay for illegal eviction in Trans Nzoia
The estate of the late powerful Moi-era politician Nicholas Biwott will have to part with over Sh5 million as compensation to 26 people he illegally evicted from prime land in Trans Nzoia.
Kitale judge Mwangi Njoroge said the 26 were wrongfully evicted from the parcel and their properties illegally demolished by Biwott and his company, Kapsitwet River Estate Limited, in collusion with the Inspector General of Police, the Director of Public Prosecutions and the Attorney General.
Biwott will pay each of the 26 Sh300,000 and Sh200,000 as an award for causing their unlawful arrest and prosecution over the parcel. The DPP, IG and AG will also bear the brunt as the Sh200,000 award will be shared between them and Biwott.
The case against Biwott and others was filed in 2017 by Charles Opondo Ochieng, Nick Musungu and Boniface Telewa on behalf of 100 other persons.
They argued that in the 1970s the government purchased several white settler farms, among them the suit land, for settlement of landless Kenyans according to the then government policy.
The petitioners were in occupation of the suit land. But instead of it being transferred to them, the suit land was allegedly transferred fraudulently to “wealthy Kenyans” who forcefully evicted the petitioners, leaving them landless and poor.
During hearing, they argued that Kabarak Farm Limited, Abma Limited, Kipsinende Farm Limited, Linshire Limited, Simon Thungu, Kenneth Hamish Wooler Keith, Desterio Oyatsi and Elizabeth Klem being sued as executors of the estate of Nicholas Biwott illegally and fraudulently acquired portions of land from the suit land and sold them to third parties.
The petitioners claimed that they, their fathers and grandfathers, all of them numbering about 78, originally lived on the suit property measuring approximately 1,653 hectares prior to colonisation and generally before the 1940s.
They were subsequently evicted by the colonial government between 1940 and 1978. They sought employment from the white farmers who were settled on the land and who had become registered proprietors.
The proprietorship changed from time to time but the petitioners remained casual employees of the white settlers who successively became the proprietors of the suit land, including Major Albert Keyser and George Barbour.
The petitioners were each allowed to occupy and farm five acres of the suit land during the tenures of all the landowners. Later, Major Keyser sold or transferred the suit land to the government and it was vested in the settlement fund trustee.
On one occasion, Biwott and then-President Daniel Moi visited the suit land and promised that the petitioners would be resettled on it in accordance with their physical occupation, thus creating a legitimate expectation of allocation on the part of the petitioners.
But come 2005, the petitioners were arrested and charged in court and the criminal case was later withdrawn.
However, at the direction of Biwott, the petitioners were subsequently evicted by police from the suit land their crops destroyed and their dwellings demolished after the withdrawal of the criminal charges. It was then that they then learnt the land had been sold in May 1980 to Biwott's company.
Judge Mwangi said the court was persuaded that the eviction and prosecution were calculated to further Biwott and his company’s personal interest rather than state interests since the land had belonged to him.
The court was, however, unable to determine whether all the requisite steps were followed in the transfer of land to Kapsitwet River Estate Ltd.
“How the same land came to be vested in Kapsitwet River Estate in 1982 therefore remains a mystery, especially as the Land Registrar has for very unclear reasons omitted the record of entries immediately preceding the transfer to Kapsitwet River Estate,” he said.
The court concluded that the eviction of the petitioners was not procedural or lawful as they were not given either notice or a hearing.
The court also found that Biwott and his company were liable for the false report that the petitioners were in trespass of the land thus causing their arrest and prosecution.
“It is evident that the arrest and the prosecution of the petitioners was prompted by malice on the part of Biwott in that he sought to use it to compel the petitioners to vacate the suit land instead of following the civil process,” he said
The Judge further held that the agents of the IG, DPP and AG acted with much recklessness and failed to evaluate the evidence against the petitioners, who, having been on the suit land for decades, could not be deemed as trespassers unless certain legal steps in the civil process were undertaken. BY THE STAR

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