The
fame of Jackson
Harvester Angaine, Kenya’s first minister for Lands and Settlement, stands
out in particular at the Kenya
National Archives. There is a good probability
that you will find a letter with some illegal authorization or instructions in
every land-related file you choose.

There
would also be demands, and there were a lot of them, from Cabinet ministers or
permanent secretaries asking for the allocation of a parcel of land with a
colonial farm house that they had “seen”. Under the Z-plot scheme at
the time, if you were a senior government official and you found a colonial
farm with a farmhouse, you could ask Angaine to approve the allocation of the
farmhouse together with 100 acres.

So,
when I learned that Angaine had actually degazetted a part of the Mt. Kenya
Forest in order to purportedly relocate some squatters but ended up acquiring
the entire site, I wasn’t at all surprised. Land was Angaine’s first love. He
cherished purchases. He could do anything to have a title deed.

This
is the story of the Ontilili forest squatters, which has been going on for over
50 years. It is about their fight for justice.

The story began in 1970 when a group of Mt. Kenya squatters
visited President Jomo Kenyatta at his Gatundu residence and requested to be
given land within the forest. After all, several of them worked for the forest
service. After hearing what they had to say, Mzee Kenyatta instructed Angaine
and the then-minister for natural resources, William Odongo Omamo, under whose
docket the forests had fallen, to develop a plan, excise the Ontulili forest,
and settle the squatters.

One
of the many “emergency” villages in Central Kenya, Ontulili’s
residents made a meager living by farming inside the forest and working as
laborers for the forest service. They were receiving Sh8 per month from the
department by the 1970s. Each retiree would receive an acre of forest land to
clear and plant temporary crops for three years in exchange. The forest service
then took ownership of the land and planted cypress trees for the neighborhood
market. Ontulili, which was located on the north-western slopes of Mount
Kenya, had a timber factory and a fire watchtower.

Two
ministers, Mr. Angaine and Mr. Omamo, visited the forest stations shortly after
the Gatundu visit on September 11, 1970, and spoke to the squatters. They
stated that they would settle them, but Mr. Angaine had other intentions.

The
government attempted to change the Mt. Kenya Forest boundaries in a gazette
supplement no. 26 from May 1975 by removing 384 hectares via a legal notice.
Due to the rising demand for land, Legal Notice No. 107 of 1977 removed an
additional 546.2 hectares. The area was surveyed, assigned reference numbers
13,269 and 12,234, and was around 2,300 acres or 930 hectares in size.

The
villagers were then instructed to clear the land shortly after. They thought this
would result in allocation. They were mistaken. The land, which had been given
to a company known as JH Angaine and Sons Ltd, was fenced by Angaine. The
Ministry of Lands and Settlement, where robberies, corruption, and bad manners
predominated, is the background for this story of why Angaine diverted the
squatters’ land for personal use—and why he got away with it.

Angaine
was not a needy or a squatter person.  He already owned a 252-acre farm in
Timau at the time of independence, and as the minister in charge of Lands, he
could have easily found more land to buy or grab if he wanted.

The
grabbing of the Ontulili land became a classic case of injustice, forcing
the squatters to begin investigating through the disorganized bureaucracy,
which was ostensibly run by the man who had taken the land in the first place.
The only letter they received was one dated May 18, 1977, from the chief
conservator of forests to the station’s forester in Ontulili, explaining that
the excision was taking place to give squatters access to land.

The
squatters filed a lawsuit against the government in 2003, claiming
that by allowing Angaine to utilize the land, the Commissioner of Lands had violated
the government’s intentions.

Home
Grown Kenya Limited

Although
the squatters’ claim was submitted more than three decades after Angaine’s
company was given the land, Justice Mary Kasango found on June 30, 2011, that
the squatters had “delayed” in establishing their claim. Justice
Kasango claimed that Home Grown Kenya Limited had already purchased a portion
of the land. The other problem was that the 550 people in the suit had expanded
from the six people who had visited Gatundu. Because there was “no
document indicating that the appellants were entitled to the property that was
excised out of Mt. Kenya Forest,” the application was denied.

I
doubt that the squatters were able to gain access to the secret registries of
the ministries of Lands, Environment, and Natural Resources in order to obtain
the original correspondence between Omamo and Angaine. But there must be a
record somewhere among the hundreds of files and millions of papers
demonstrating the intention behind the removal of the Ontulili forest. That
objective, as the court was informed, was not to settle Angaine! Never.

At
the Court of Appeal, where the squatters sought justice, their case, based on
the language of rights, was heard by Justices Martha Koome, Philomena Mwilu,
and J. Otieno-Odek. Their lawyer said that Justice Kasango erred by
failing to understand the feud’s history and the politics of squatter
settlement – and that the six people who visited President Jomo Kenyatta at
Gatundu represented the squatters. He further said that the government could
not have excised 3,000 acres of land for one person.

“It would have been nice to hear Angaine’s defense. His case
was based on abuse of power, and the question was whether land or a title
obtained via such abuse would face scrutiny in a court of law, regardless of
how long it took the litigants to seek relief from the court. Indeed, the
squatters asked the Court of Appeal to “read the Constitution in a way
that promotes its aims, values, and principles, as well as the rule of law and
human rights.”

This
is one unfortunate case that may have benefited from archive study, but many
plaintiffs go into cases blindly and fail to present a case that could have had
landmark implications. And the Court of Appeal justices, who received only the
letter from the conservator of forests, were debating whether the letter dated
May 18, 1977 from the Chief Conservator of Forests could bestow any rights on
the squatters. The response was negative.

The
appellants were not squatters on the land occupied by Angaine, which
complicated problems further. As a minister, Angaine understood the absurdity
of having people squat in his farm. He did not allow it.

The
Court of Appeal then had to decide whether Jomo Kenyatta’s spoken promise was legally
binding. The squatters claimed that the late President promised them land from
the excavated forest. “Can a promise to allocate land create any interest
in land, and is such a promise enforceable?” the court asked and answered.
“It is our considered view that mandamus cannot issue to enforce a promise
to do something in the future; nor can mandamus issue to enforce a promise that
is not supported by a statutory provision.” A promise cannot create or
convey a right to land.”

While
this is true, the court overlooked the fact that Angaine, immediately after the
squatters’ visit to Mzee Kenyatta, went to Ontulili with Omamo and addressed
the same squatters. In the courts, the importance of memory against recorded
accounts must be acknowledged.

That
Angaine had excised forest land and given it to himself should never be
tolerated in a democracy, no matter how long it took. However, the Court of
Appeal did not focus on the illegality of that transaction, instead leaving it
to the National Land Commission, which is mandated with dealing with historical
land injustices.

Due
to this, the National Land Commission is wisely reviewing the situation and
concluding that the squatters have a valid claim. They are not alone either.
Politicians who shamelessly grabbed land and made a fortune from that mischief short-changed
thousands of people. We ought to keep an eye on the Angaine land saga.

Read full story as told by Nation.

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