Isiolo land officials face scrutiny for disregarding court order

A group of Isiolo residents who won a case in March last year after being sued for allegedly stealing someone else's land at Chechelesi in Wabera ward but have yet to obtain access to the property have petitioned President William Ruto to assist them in reclaiming their land.

A judgement delivered by then-Isiolo Senior Resident Magistrate Edward Tsimonjero on March 20, 2023, directed the county surveyor, physical planner, and land registrar to regularise the boundaries so that each party's portion could be identified and marked, but the three officials have disregarded the directive.

Peter Letodo, the plaintiff, went to court in May 2019 seeking an injunction to bar Hellen Ebei, Richard Michubu, Sagoya Lelenguya, and Jane Nkatha, the defendants in the civil suit, from trespassing into his Chechelesi plot No. 1428.

In his written submission to the court on February 14, 2020, and in his affidavit dated June 29 of the same year, Letodo asserted that he had owned the land since 1980.

He also asserted that he followed the correct procedures to acquire the plot and that the county government had approved his request for a part-development plan.

He, however, did not substantiate claims that the defendants invaded his property in August 2015 and demolished a semi-permanent house, erected a fence, and even hired goons to threaten him. He applied for his plot PDP registration on June 28, 2016.

Letodo, during cross-examination, shocked the court by saying that he had only sued Hellen because she claimed to own part of their land that she had allegedly invaded in 2015, raising questions as to why he had included the three others in the suit.

Hellen, in her defence shared on November 6, 2019, said she was the bona fide owner of plot No. 1389, measuring 0.38 hectares, on which she insisted on having lived since 1992.

She further told the court that a group attempted to dispossess her of the land in 2014 and that she then filed a complaint with the County Land Executive and sought the intervention of the area chief.

"The plaintiff has encroached into my land." I have never trespassed into Plot No. 1428," Hellen said in court.

The dispute, she said, started in 2013 and that, at some point, both appeared before the chief and an assistant county commissioner, but no resolution was found.

They told the court, along with Michubu, who claimed ownership of Plot No. 1385, that the pending case had prevented their PDPs from being approved.

Mary Njeri, a defence witness and owner of one of the plots, admitted that the disputed land was unregistered and that they possessed it through acquiring and gathering.

In October 2020, the court planned a site visit with the land officials, whose findings would aid in the case's determination.

After the visit on October 27, County Physical Planner Kimutai Cheruiyot reported that Letodo's ISL/117/16/244 plan aligned with the ground, but the location plans for Michubu and Hellen, ISL/117/18/263 and ISL/117/18/262, had not received approval.

This is despite the county surveyor approving the two applications in July 2018.

According to Cheruiyot, Letodo claimed 1.6 hectares and Hellen claimed 0.5 hectares from Letodo's portion.

"The defendants made an attempt to register the contested land in 2018 but the process was not completed and therefore, the documents submitted do not meet the requirements for a claim of ownership. Documentation submitted by the plaintiff tallied with the ground and has consistency with the records held," Cheruiyot said in a letter dated February 5, 2021.

When the elders meeting on March 7, 2017, failed to resolve the land dispute, they referred it to the Lands Office for document verification and appropriate advice.

A February 18, 2018 letter from the County Department of Lands confirmed that Plot No. 1428 belonged to the plaintiff.



While delivering the judgment, Magistrate Tsimonjero found that Michubu's application concerning PDP No.ISL/117/18/263 was approved by the County Surveyor on July 17, 2018, by the Lands Chief Officer on August 2, and by the County Revenue Officer-Lands, County Survey Department, and Land Records Officer on November 2, the same year.

The same year, Hellen's application was approved.

Additionally, a letter dated March 15, 2019, from the Land Chief Officer addressed to the Isiolo Sub-County Criminal Investigations' office that had sought some information over the disputed plots indicated that plots 1385 and 1389 belonged to Michubu and Hellen, respectively.

The magistrate stated, "Even though the PDP for Michubu and Hellen had not received approval by the time the court visited the scene, it does not mean they had no valid claim."

With neither of the parties having bought the land, the court ruled that neither had superior rights over the other and that each was entitled to the portions of land they held at the time.

Magistrate Tsimonjero singled out the county's Department of Lands for instigating non-existent land disputes, warning that 'the department would not be allowed to make some claims superior to others'.

"Plot 1428 in the name of the plaintiff exists and so do plots 1385 and 1389 in Michubu and Hellen's names. Records from the Ministry of Lands confirm this position. Whether the plots overlap each other or not is not the question," he said.

The court said the concerned authorities should have established the existence of the plots on the ground and demarcated them before creating and issuing the numbers.

"For them to leave the parties to fight their way out is irresponsible, yet they are deriving taxes from all of them," the magistrate said, dismissing the suit and ordering the surveyor, physical planner, and land registrar to regularise the boundaries.

"The court cannot issue an injunction against a party with a valid concern over the disputed parcel. The dispute herein is the creation of some individuals for their gain and the court cannot be used to legitimise this kind of illegality.".

Six months later, the Isiolo Chief Magistrate Court issued a notice to the County Surveyor, Physical Planner, and Land Registrar to appear before the court over failure to visit the suit property and having demarcation done, boundaries marked, and parties shown their respective plots on the ground.

The three were supposed to appear either in person or by representation of an advocate on November 6 last year.

The three officers' blatant failure to follow the court judgement is thought to have triggered a November 2 warning to Cheruiyot and the County Surveyor, whom Magistrate Tsimonjero gave 14 days to comply with the earlier instructions or face legal action from the court.

Three days before the mention of the case over their disregard of the court orders, Cheruiyot wrote to the Chief Magistrate's Court stating that they could not execute the ruling as the disputed land fell within a zone of a township area that is unsurveyed. Therefore, the acquisition of Registry Index maps to facilitate demarcation was impossible.

Cheruiyot further claimed that the ruling did not give express criteria on the determination of the extent of the awards for each party nor did it award a percentage of the land for which an apportionment was made for the parties in the case.

"Without explicit directions from the court on ownership of the land in a contest or the extent of specific portions each of the parties gets if the entire parcel is subdivided, we are unable to execute the ruling in a manner that is guided and does not place the departmental office at loggerheads with the parties," he said.

On Thursday, the residents urged the Head of State to take decisive action against the offices that they claimed were still causing inexplicable suffering to the locals.

Mary Njeri said it was sad that the office bearers disregarded court orders despite being civil servants, demanding an overhaul at the Ardhi House in Isiolo town.

"No one is above the law. We appeal to President Ruto to intervene and ensure legal action is taken against the officers heading the three offices for the injustice done to innocent citizens," she said.

Michubu said, "We wonder if we are in a banana republic because the level of disrespect to the court that is supreme is shocking.".