Bilisia community in Tana River reclaims ancestral land after court cancels 99-year lease

More than 200 members of the Bilisia community in Tana River who lost their ancestral land to a community-based organisation (CBO) have won it back after the High Court nullified a 99-year lease extended to the CBO by the National Land Commission (NLC) in 2018.

Ida-SA Godana Ranch Cooperative Society Limited had been allocated the land in 1970 by the then Tana River district commissioner who allowed them to own the land for 45 years. They had posed as development partners.

The lease expired in 2015 and the same was extended in 2018 by the NLC despite the opposition by the members of the community who had been deprived of their land.

"An extension of the 1970, 1981 lease as renewed in 2018 to benefit the third respondent (Ida-SA Godana Ranch Cooperative Society Limited) is hereby declared null and void ab initio as ineffective in conferring title to the (respondent) proprietary rights," stated justice Evans Makori of the High Court in Malindi.

The judge ordered rectification of the land register by the cancellation of the lease over the suit property and the certificate of lease in favour of the (society) to restore the suit property to the residents.

In public interest

Makori also lifted the injunctive order in place restraining the Kenya Electricity Transmission Company (KETRACO) from laying electrical infrastructure on the property. The judge said the vacation of the order was in the public interest.

However, KETRACO will pay Sh25.8  million to the members of the community for the land they have been occupying.

Makori said the issuance and renewal of the lease in 2018 to the society was in contravention of the Constitution.

He said the same was also in contravention of Section 12 of the Land Act as representing continuing historical land injustice against the petitioners (the residents).

Justice Makori issued an order to the NLC to initiate investigations on the complaints raised by the residents in their petition in court within six months.

The residents, led by Ali Hero Buya, had raised complaints of historical land injustices occasioned by the allocation and extension of the lease issued to the society in 1970, extended in 1981 and renewed in 2018, over Land known as Plot L.R. No. 13597/1.

Justice Makori said the investigations will be conducted in consultation with the national government and the county government of Tana River.

Historical injustice claim

"The investigations should specifically address the following: The continuing historical injustice claim raised by the petitioners and the manner of redress, whether allocation and lease of Plot LR No. 13597/1 deprived the Petitioners (residents) of ancestral or community land," the judge directed.

"A permanent injunction be and is hereby issued against (the society), anyone acting under them, restraining them from dealing with the suit property in any manner that will change the

substratum of the suit property - Plot LR No. 13597/1 until the investigations and recommendations proposed are completed," stated Makori.

"However, the sum of Sh25,890,620/, along with accrued interest for limited loss of land use and the wayleave affecting the disputed property, will remain unpaid and be banked in an escrow account to be held by the (Tana River County government) in trust for the people of Tana River County until the investigations and recommendations by the (NLC) are finalised and the beneficiaries established."