26 March 2019

Kenya: Nyeri Residents Dig in as Battle With Catholic Church Over Land Hots Up

Residents of Mathari location in Nyeri County have been fighting the Catholic Church for more than 50 years over ownership of about 2,500 acres of land.

Different groups have filed at least five lawsuits in court seeking orders to compel the Catholic Archdiocese of Nyeri to surrender the land, claiming it is ancestral.

The groups include Mbari ya Murathimi, Mbari ya Mathari, Nyeri Hill Farm, Maganjo Landowners, Mathari Maganjo and Kamwenja Maganjo Owners Self-Help Group.

EMERGENCY

The suits are registered as Nairobi High Court Petition no.398/2006, Nyeri Environment and Lands Court Petition 205 of 2014, Nyeri ELC Petition No.14/2013, Nyeri High Civil Case No.212/2011 and Nyeri ELC Petition 8/2018.

The first four cases have been consolidated into one petition, currently awaiting to be heard at the High Court in Nyeri.

All the suits claim that the land is ancestral and want leases in favour of the church revoked.

Court documents show that the residents are predominantly poor subsistence farmers and squatters who eke out a living by working as labourers on coffee and tea plantations.

They say they were evicted from the land during the emergency years, between 1952 and 1960.

After independence in 1963, they argue, the land was allotted to the Consolata Catholic Missionaries and long leases were created by the government.

One parcel is registered as LR No. 9464 (original number 1105/2/2) measuring 1,089 acres. It was allocated to the Consolata Catholic Mission Trustees on March 1, 1958 for 954 years and five months at an annual rent of Sh217/80.

The second parcel is LR No. 1356 measuring 584 acres and was allocated on March 1, 1965 for a term of 974 years and five months at an annual rent of Sh278.

The third parcel, LR. 4166 measuring 904 acres was allocated on November 1, 1965 for a term of 956 years and two months at an annual rent of Sh695.

HOMELESS

The Consolata Catholic Missionaries, the squatters further argue, were part of the white settlers and had been allocated 1,054 acres registered as parcel number LR No. 1105 in 1912.

The villagers say that the parcel of land belongs to the church.

However, they say, the land -- now owned by the Diocese of Nyeri Trustees -- should be subjected to the Law of Succession and 10 per cent be allocated to some of the villagers fathered by Italian missionaries living in Mathari.

" ... they being of mixed race, the said petitioners should be allocated 10 per cent of the land as their genealogical inheritance from the consulate missionaries," read part of the court documents. The petitioners with their descendants, about 3,000 people, have remained homeless for about 50 years. They claim that the church has used the government to resist their legitimate demands to return home.

"The petitioners aver that when their lands were allocated, they were held under Kikuyu customary law and should have been subjected to land adjudication, consolidation and registration, this being what was done in respect to the neighbouring trust lands," Mr Johanah Githinji Njoroge says in the petition.

In another case filed by about 400 squatters known as Mathari Village Self-Help Group, the church agreed to cede 600 acres to the villagers.

However, the move hit a snag when only 428.7 acres were identified. The squatters moved back to court seeking the 171.3 acres. The church had not replied to the application by February 28.

UNLAWFUL

The church has all through denied land-grabbing claims, saying the property was legally acquired and is home to various activities and institutions.

These include Christ the King Major Seminary, Sister of Tabitha Convent, Mwenji Parish, St Paul's Minor Seminary, Franciscan Sisters, Holy Angel Sisters, St Bernadict Academy, Hill Farm Primary School, and St Theresa College.

Through its legal adviser, Father David Mutahi, the church says the land was acquired and registered in favour of the Diocese of Nyeri Trustees on various dates between 1903 and 1915. Father Mutahi states that the land was later transferred to the Consolata Catholic Mission Trustees in 1929.

The protracted land dispute has seen some residents arrested and prosecuted for criminal offences such as cutting coffee bushes.

Last month, the High Court stopped six Nyeri residents from suing the State and the church for unlawful prosecution relating to cutting coffee trees 14 years ago.

Justice Teresiah Matheka dismissed the residents' application to review her ruling dated January 31, 2018 in which she declined to allow them to sue for "malicious prosecution".

The court heard that the six elderly men were on April 20, 2004 arrested by police officers and arraigned four days later.

They were charged with cutting 726 stems of coffee trees at Hill Farm belonging to the church.

Justice Matheka heard that the residents were later acquitted in November 2004 after the Magistrate's Court found that they had no case to answer.

MALICIOUS

After the ruling, they filed a civil case seeking an unspecified amount of money as compensation over malicious prosecution.

While urging the judge to allow them to file a civil case, the residents blamed their two lawyers (now deceased) and court registry staff for delaying the matter.

The judge heard that the applicants were denied proceedings of the criminal case.

In her ruling, Justice Matheka said the application introduced new matters and was time-barred.

"That is untenable and would be prejudicial to the other parties who also enjoy the equal protection of the law," stated the judge.

She further noted that there was no evidence to support the allegation that their advocates colluded with court registry staff to deny them an opportunity to file the suit.

"By appointing an advocate the case did not become the advocate's; it remained their case. It was upon them to pursue the advocate to pursue their case for them. I found that they had slept on their rights and that 11 years down the line was an inordinate delay," said the judge, adding that the application lacked merit.

The residents were listed in court papers as Simon Wanyiri, Aloysius Waweru, Julius Maina, Julius Njora, James Githinji and Bernard Gitahi.

The church was opposed to the application: "They have no locus stands to bring any claim against the church. The application is misconceived, bad in law and should be struck out," said Father Mutahi.

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