The Star (Nairobi)

Kenya: Moi Gets Reprieve On Kabarak Land Dispute

FORMER President Moi was yesterday allowed to move to the Supreme Court in a bid to reverse a judgment giving a farmer 100 acres of Kabarak farm.

Three judges of the Court of Appeal agreed with the former President that "there is a likelihood of miscarriage of justice" if the appeal is not heard.

The judges said that this was because the High Court and the Court of Appeal were divided whether time started running when Moi was given the land or when Moi High School took over the land.

"There is also the issue of the legal status of the applicants as the claim was not raised at the trial but only surfaced on appeal. Is this school an entity independent of Moi or not?" posed Justices David Maraga, Daniel Musinga and Fatuma Sichale.

"In that uncertainty a substantial miscarriage of justice may have occurred or is likely to occur if the applicants are not granted leave to pursue the intended appeal to the Supreme Court," the judges added.

The judges said some issues touching on agricultural land need to be clarified for the general good of the country. In an application filed at the Supreme Court, Moi wants the court to stop Malcom Bell from repossessing the land, part of which Kabarak High School stands.

Moi, through his lawyer Juma Kiplenge, saysby virtue of Court of Appeal judgment, Bell stands to get the land back despite the fact that the school has been owning the land since 1981. He says in the application that the school stands to suffer "grave miscarriage of justice" by losing part of its land.

The former President says that he himself has never possessed the land yet Justices Martha Koome and Hannah Okwengu ordered him to vacate the parcel. He argues that the order against him was great anomaly.

The school through its principal Henry Kiplangat has also faulted the judgment and wants a status quo be maintained pending the determination of the intended appeal.

In the intended appeal, Moi says that the two judges were wrong in finding that Moi did not provide water, a cattle dip and supplied electricity as he had agreed with Malcom's father Walter Bell, in exchange for the land.

He says in the court papers that electricity was connected to the farm in 1998, one year after the senior Bell passed on, and cattle dip constructed but efforts to sink a borehole were fruitless because there was no water.

He says the adverse possession crystallized in 1993, during the lifetime of the senior Bell. He further says that the land was a gift as alleged by Malcom, the court cannot overturn the gift.

On their part, the school board of governors alleges that they have been occupying the land since 1981 and the school, which is well known, has been catering for the needs of students since 1979.

Bell moved to court soon after Moi exited from power but was unsuccessful as his case was dismissed by Justice Muga Apondi, who allowed the school to occupy the land by virtue of adverse possession. But the decision was overturned last year by the two judges.

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