The Supreme Court has agreed to hear an appeal by the Attorney-General challenging a Sh17.3 billion award to a Narok investor over the State’s failure to stop the invasion of his ranch and destruction of property by locals over three decades ago.
A five-judge bench presided over by Chief Justice Martha Koome ruled that the appeal falls within the court’s jurisdiction because it raises issues concerning the interpretation and application of the Constitution.
The judges said a review of the record of appeal showed that one of the grounds challenges the Court of Appeal’s finding that the State violated Nguruman Limited’s right to property under Article 40 of the Constitution.
‘Consequently, we are satisfied that the appeal does fall within the confines of this Court’s appellate jurisdiction under Article 163(4)(a) of the Constitution,’ the court ruled.
The judges added that the lower courts had applied Article 40 in determining that the State violated the investor’s right to property, making the constitutional provision a subject of adjudication in the proceedings.
The Court of Appeal had ordered the government to compensate the investor following the invasion and takeover of its expansive ranch in Narok by locals, which began in 1991.
The appellate court held that the police’s failure to act despite numerous requests and court orders to stop the invasion, destruction and illegal occupation of the property amounted to an untenable abdication of the State’s foremost duty: ‘namely the protection of private property’.
It agreed with the trial court that the State was liable for violating the investor’s right to property, saying the prolonged failure by the police and other government agencies to enforce court orders and protect the land, coupled with the conduct of State officials during the invasion, amounted to acquiescence and a breach of Article 40.
The Attorney General subsequently moved to the Supreme Court to challenge the decision.
However, Martin Richard Steyn opposed the appeal, arguing that the Supreme Court lacked jurisdiction to entertain it.
He submitted that the case did not raise any constitutional controversy because the Court of Appeal had relied on the common law principle of negligence in determining the liability of the National Police Service, rather than interpreting or applying the Constitution.
Mr Steyn argued that the appeal was merely an attempt to have the Supreme Court review concurrent findings of fact and conclusions reached by the two lower courts, a mandate that does not fall within its jurisdiction.
He further pointed out that some of the issues raised by the Attorney General had not been canvassed or determined by the lower courts.
These included whether the investor should have been awarded damages for violation of its rights under Article 23(3) of the Constitution instead of compensation based on the value of the property.
The Attorney General, however, maintained that the appeal raises questions concerning the interpretation and application of various constitutional provisions on the extent of State responsibility in protecting property and the principles governing compensation for constitutional violations, among other issues.
Nguruman Limited sued the government, saying it was the registered proprietor of land known as LR No. Narok/Nguruman/Kamorora/1, measuring approximately 66,700 acres.
The property is situated in the Nguruman area of Narok County, near Lake Magadi, and borders two group ranches.
Mr Steyn told the court that he entered into discussions with the neighbouring group ranches around 1983, with a view to leasing or acquiring the land. The court heard that the first invasion occurred in 1991 when armed members of the neighbouring Shompole Group Ranch trespassed onto the southern section of the property, causing damage.
The investor went to court and obtained orders, but they were allegedly not enforced.
In an attempt to resolve the dispute, the investor and local representatives reportedly held discussions. However, instead of leaving the property, more invaders joined the occupation and began cultivating the land.
Soon afterwards, armed groups invaded the ranch, violently ejecting the company’s employees from its Olduvai and Nkareketi camps before looting and destroying property.
The invaders later took possession of Laro Camp, completing the investor’s expulsion from the expansive ranch.
The Environment and Land Court had initially awarded the investor Sh33 billion, prompting the Attorney General to appeal on the grounds that the government had not taken over the property.
The court heard that Nguruman Limited remained the registered owner of the land, although the actual acreage was disputed. The dispute over the size of the property was to be resolved by the National Land Commission.
The court subsequently ordered the government to pay Nguruman Limited Sh16.7 billion as compensation for the land, Sh340 million for the destruction of its lodges and Sh162 million for the destruction of electricity and water supply systems and other installations.
The government was also ordered to pay Sh61.1 million for the loss of assets, furniture and consumables, Sh11.2 million for motor vehicles stolen during the invasion and Sh39.4 million for trees destroyed by the invaders.