Court Quashes Order to Strip Eastern Produce of Nandi Land

Kenya’s Court of Appeal on Friday threw out a land commission ruling that would have stripped tea grower Eastern Produce Kenya Ltd of a property in Nandi County, saying the company was never shown the evidence against it.

The National Land Commission, the state body that investigates claims of historical land injustice, had in 2019 sided with a local farmers’ group, Kimasas Farmers’ Co-operative Society, in 2019.

It recommended that the titles carved out of a parcel known as L.R. No. 9285 be cancelled and the land handed to the society. Eastern Produce holds the title to one of those plots and says it has tea factories and tea bushes on it.

Eastern Produce Wins Appeal in Nandi Land Dispute

Three appeal judges said the commission reached that decision unfairly. The company’s lawyer twice asked for the documents the farmers were relying on, and the commission promised to supply them. It then decided the case without doing so and held the company’s silence against it.

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A party “cannot reasonably be expected to answer allegations founded upon documents” it has never seen and has expressly asked for, Justices L. Kimaru, L. Njuguna and J.O. Okello said in a joint judgment.

The ruling is a significant win for Eastern Produce, but it does not settle who should own the land. The judges said they were ruling only on how the commission handled the case, not on whether the farmers’ claim is valid.

That question, they said, is for the commission to consider at a properly conducted hearing. They made no order on whether or when a fresh hearing should be held.

A Claim Reaching Back to Colonial Times

The society lodged its complaint in February 2018. It said its members’ forefathers lived on and farmed the land before colonial settlers took it over and turned them into squatters.

It said that in 1986 a manager at the tea company, P.G. Scott, agreed to settle its members on about 550 acres. Only about 210 acres were transferred after the society paid roughly 247,000 shillings, and the other 340 acres were held back, it said.

The society also alleged that part of the land was secretly acquired by Henry Kosgey, a former member of parliament for Tinderet, and his associates. The appeal court made no finding on that allegation, and Kosgey was not a party to the case.

Eastern Produce told the courts it is the registered owner of one of the plots, L.R. No. 9285/3, under a government grant issued in May 1999. It said carrying out the commission’s recommendation would cost it the property and its investments there.

Twenty-one days, No Documents

The commission called the company to sessions in Nandi on July 10 and 11, 2018. The company’s lawyer attended and said he had not received the papers behind the complaint, so could not answer it properly.

The commission gave the company 21 days to reply in writing and said its secretariat would provide the documents. Eastern Produce said the papers never came and no further hearing was called.

The commission issued its decision on Feb. 7, 2019, noting that the company had not replied, and published it in the government gazette on March 1.

In court, the commission and the society argued that the company had been given a hearing and a deadline, and had only itself to blame for not using them. The Environment and Land Court agreed in April 2023, when Justice Angote dismissed the company’s challenge.

Why the Appeal Court Disagreed

The appeal judges accepted that a body like the commission does not have to run a full court-style trial. But they said it must still give anyone whose rights are at stake a real chance to know the case against them and answer it.

Fairness, they said, “is not reduced to a formal invitation to appear”.

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They drew a line between two kinds of party. One has everything it needs and chooses to stay silent. The other tells the decision-maker it lacks the documents and is assured they are coming.

Eastern Produce was in the second group, the judges said. Its failure to reply could therefore not be treated as giving up its right to be heard, and a 21-day deadline meant little without the material needed to meet it.

Because the case turned on fairness, the court did not decide the company’s other arguments. Eastern Produce had said the dispute was about an unfinished gift of land between private parties, not a historical injustice. It also said the claim was filed too late, and that the commission had no valid rules to work under after Parliament annulled its regulations in March 2018.

The Orders

The court set aside the 2023 judgment and quashed the commission’s decision and gazette notice as far as they concern Eastern Produce and L.R. No. 9285. It ordered the commission and the society to pay the company’s costs of the appeal.

The society opposed the appeal. The commission, the Chief Land Registrar, and the Nandi County government, all named in the case, did not take part in it.

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Court of Appeal. PHOTO/Standard