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Community Wins Land case PDF Print E-mail
COMMUNITY LAND STRUGGLE – A CASE FOR MSUMARINI UMOJA SELF HELP GROUP



CONTEXTUAL BACKGROUND

The Coast of Kenya comprises a stretch of land running from a place known as Vanga in the South to Lamu archipelago in the North and extending inland for ten nautical miles (approx. 2116 Square miles) with a single major urban centre (Mombasa) whose modern development has been based on the only deep water port along the entire coastline. Much of the province as one moves towards the hinterland is semi-arid but there is a paucity of high potential agricultural land and general absence of navigable rivers or easily exploitable mineral resources. The coastline though is a major economic resource, with its associated large-scale tourist development.


The Kenya coastline is about 600 km in length from the boarder with Tanzania in the South to the boarder with Somalia in the north, and forms part of the western border of the Indian Ocean.  Its most distinctive feature is the almost continuous fringing coral reef usually running parallel to the Coast.  Other features include the Lamu Archipelago with its extensive mangrove forests; the Tana River, Kenya's longest river, which discharges through a complex wetland system into Ungwana Bay, the Sabaki River which incorporates the Athi and Galana rivers and discharge just north of Malindi; Mombasa Island at the entrance to the most extensive embayment on the Coast; with Mombasa Harbour on one side and Kilindini Harbour on the other, the former leading to Port Tudor and the latter to Port Reitz; and the Southern complex of Gazi Bay, Chale Island, Funzi Bay and Funzi Island, Wasini Island and a number of smaller islands.


The Coast Province is one of the eight provinces of Kenya.  Administratively, the Province has seven Districts namely, Mombasa, Kilifi, Kwale, Tana-River, Taita-Taveta and Lamu.  Slightly over one Million people inhabit this Coastal zone at an overall density of 100-200 persons/Km2.  Out of this; about 666,000 live in Mombasa, which is Kenya's major seaport and second largest urban area.  It is estimated that about 17% of the total population of Kenya lives in this Coastal zone, which also accounts for about 62.5% of the country's tourism industry.


On land, the coastal corridor is important for its agricultural crops such as cassava, maize, cowpeas, rice, mangos, banana, pineapple, cashew and coconut as well as sisal and cotton.  In both the inter tidal and sub-tidal areas, the coast provides finfish, shellfish, marine algae and timber from mangroves.  The Coast is also the gateway for greater part of Kenyan imports and exports, a magnet for tourists and, potentially, the key to further prosperity if petroleum deposits are discovered offshore as expected.


Underlying these resources and uses which are of direct human interest, are the inherent ecological values that rank any stretch of Kenya Coast among the most productive and valuable of natural ecosystems.  The rich biological diversity reflects the varied habitats which, starting from oceanic side include deep waters comparatively close inshore, coral reefs, seagrass meadows, sandy beaches, rocky shores, mangrove swamps, estuarine mudflats, lowland coastal forests and coastal hill forests which eventually give way to the savannah plains further inland.  Coastal forests contain 27 plants, four birds and five mammals that are endemic to Kenya.  These forests are very important for the conservation of plants and animals, and it is estimated that 50% of the plants, 60% of the birds and 65% of the mammals that are currently threatened with extinction in Kenya are found in these coastal forests.


The Coast Province has a diverse range of wildlife, including those found in the marine environment, within the coastal forests and in the drier grassland areas.  Several Marine parks and reserves have been gazetted by the government, such as the Kisite/Mpunguti Marine Park and Reserve, the Mombasa Marine Park and Reserve, the Watamu Marine Park and Reserve and the Kiunga and Diani National Reserves.  Wildlife areas on land include the Shimba Hills National Reserve and the Tsavo National Park in Taita Taveta District, which is the largest national Park in Kenya.


The Land Issue (Ownership/Tenure)


Even as Arabs, Swahilis and various coastal tribes resided in the 10-mile coastal strip in Kenya, the Mijikenda who were farmers, fisherfolks and traders constituted the majority of that population. The Mijikenda were however forced to flee to the hinterland to escape capture by the Arabs and Swahili slave traders. By 1895 the land they had settled on was taken over by these Arabs and Swahilis and this marked the first stage of dispossession. When Britain established authority over Kenya, it also obtained on lease the strip from the Sultan of Zanzibar. Britain therefore had full authority to deal with among other things all matters affecting land and minerals, executive and judicial administration and the right to levy customs and regulate trade. Before signing the Sultan insisted that although the Mijikendas were not his subjects they should be consulted on matters of land. This was accepted but it was also the first promise the British reneged on. The Sultan continued to receive his rent and his subjects were treated very well by the British and therefore it did not matter to him what happened to the Mijikendas.


The strip remained a protectorate till 1920 when together with interior they were declared colony and protectorate of Kenya. Here the Muslim law of land alienation applied that is land that was cleared of bush and cultivated became the property of the person who performed this task, it remained his even if it reverted to bush but passed from his hands only if he left the country without leaving an agent to tend it. This is the genesis of absentee landlords that stalks the coast of Kenya to date.  The Mijikenda on their part settled on the land either with the knowledge that it belonged to someone else or under the assumption that since it was their ancestral land and it still belonged to them. Under the Muslim tenure there was a distinction between ownership of land and ownership of chattels or crops thereupon. What this meant is that Arab owners granted permission to anyone to cultivate and even build a house but such person would be a tenant at will and could be evicted within one month’s notice. The tenant had liberty to take his hut and crops but could not be compensated for permanent crops such as coconut, cashew-nut, mango, and orange trees. The Muslim law favoured the Sultan’s subjects who could acquire private property but disadvantaged the indigenous communities being non-Muslims and non-subjects. The dispossession continued. Then came the Land Titles Ordinance (LTO) that the colonial authorities enacted to determine the extent of private possessions along the coastal area before alienating land for the crown and give grants to individual settlers. This exercise only recognized Arab and Swahili titles to land, Africans were considered to only have user rights. The Mijikenda and ex-slaves were further dispossessed when land they formerly occupied but were not in the hands of Arabs or Swahilis were declared ‘waste and unoccupied land’ by LTO and were thus given to the crown. Between 1919 and 1926 vast sections of this crown land was surveyed and registered, Arabs and Swahilis were given freehold titles, those who abandoned theirs under Muslim law lost their rights to it and it reverted to the crown. All unregistered land under freehold was deemed crown land. Africans it was assumed held land under communal tenure and therefore in order to give way to European settlement, some Mijikenda were taken to the native reserves established exclusively for them beyond the 10-mile strip. On the eve of independence Arabs issued eviction notices and collected rent from the Mijikenda and ex-slaves who occupied land they thought was abandoned public land or land with no claimants to. The new administration had entered in to a pre-independence agreement with the Sultan conceding to the Sultan’s demands for recognition of private land rights on the coast and adjudication and registration of such rights where this had not been done. All crown land became government land and this sealed the fate of the Mijikenda whose land rights had previously been negated.


THE MSUMARINI LAND STRUGGLES


The issues of land ownership started in 1895 when the Vipingo Estate started what is called Sisal Farming in the Coast Province of Kenya.  Secondly the issues of the Mazrui Trustee Act of 1931 and thirdly the Colony and Protectorate of Kenya Land Title Audience of 1908.


Here, the ruling elite of the Mazrui family sub-divided the land to their cronies without consulting the natives Mijikenda community, an act which contributed to the current land deprivation in the area.


In 1943 – 45 the Vipingo Estate started cultivating sisal in a place called Msumarini but because of the resistance from the local community, they were pushed to the present Vipingo Estate Plantation. 


In 1961-65, the Vipingo Estate expanded rapidly which demanded more land leading t loss of community assets such as  agricultural products such as Banana plants, mango trees and coconut which were cleared to pave way for the expanding plantation without any compensation to the community.  Some plants still remain in the present Waiyaki Farm, the present Moses Mohammed Farm and the Present Hussein Dairy farm which communities cannot access lest they be sued for trespass.


In 1964, the Local community invaded Kijipwa Police Station and several police and people were injured leading to massive arrests where 15 people were charged and sentenced to three (3) years imprisonment.


Although the above mentioned acquired land in this area, the community resisted eviction and the following villages were not destroyed to date Bureni, Kuruja Zoerani and Guro but about one thousand (1000) families were displaced.  Those who benefited from this were the Mazrui family, the Indian Elite and the British retired army officers  The Mijikenda community were pushed at the seashore in order to give the fertile land to other communities.


THE PRESENT SITUATION


The partition of land in Msumarini was a win-win situation for the rich and loss-loss for the poor.  Those who benefited from the first allocation sold the land to the rich people. The community is still loosing their land to the rich people and they are being pushed from the West side to the East side near the sea.  The community therefore cannot go down to the sea neither can they go up as the plantations and the Mazrui land surround them.  It is for this reason that the Msumarini community have vowed to resist further eviction and struggle for acquisition of the land which they believe they hold the right to.  Failure to acquire he land held by Hussein Dairy, Vipingo Estates and all the other farms named above will see the community perish hence the tireless efforts by the past and the current generation to ensure this does not happen.


In order that the community continues with the struggle, they formed a community organization that brings together all the affected communities in this area and to forge a joint initiative aimed an ensuring community rights are accessed and enjoyed and end the land injustices which have been perpetuated against the poor voiceless community by the government in partnership with the rich multinational companies and individuals.


The Msumarini Umoja Self Help Group was started in January, 1999 by the Msumarini community members with the following agenda.


To reclaim our land which was taken by various land owners e.g. Canon Insurance Kenya Limited/Moses Mohammed/Munywa Waiyaki and Vipingo Estate?

To establish the boundaries between Kijipwa Settlement Scheme and Plot No.9/8/13/1286 and two others.

To settle squatters on the above plots.


Following the above, we went ahead and paid a Surveyor to establish the boundaries.  After the survey, the surveyor sided with the land owners and said that there was only one (1) acre established and which he said belonged to the government.  Due to all this injustice, we found it necessary to start a self help group to be able to advocate for our land rights, thereby Msumarini Umoja Self Help Group was formed and registered.


The members of the group come from different villages. .i.e. Msumarini, Kikambala, Mtepeni, Kapecha, Kadzinuni, Bodoi, Gongoni, Bureni and Jungu.  All these villages came under the one umbrella community based organization called the Msumarini Umoja Self Help Group.


The group started with only seven (7) members and by 2003, the membership had risen to 2,800 people.


During this time the following organizations were helpful to the community

Ujamaa Center

Illishe Trust

Pamoja Trust

Muungano wa wanavijiji

Maji na Ufanisi and

Shelter Forum.


In February the same year 2003, the community having tried dialogue in vain resolved to take possession of plot NOs.36113, 34866 and 8444 which belonged to the Vipingo Estate Limited by then.


After the intervention, the District Commissioner Kilifi and the security committee called for a dialogue meeting with the community.  The negotiations between the government and the community took one month but still this process did not even attempt to resolve the problem hence there were not tangible achievements. 


15th March, 2003

The community then invaded the land once again on 15th March, 2003 in the morning and by 3.30 p.m twenty (20) members of the community were arrested.  About five members (500) proceeded to the police station to join those who had been arrested and by evening the same day two hundred and forty seven (247) members are in police custody.  The rest were forcefully chased back as the police station did not have the capacity to hold 500 people.


The community approached three (3) lawyers namely Mr. George Kithi, Fredrick Okanga and Anania Mwambodza who agreed to offer voluntary services.  Lawyer Stewart Madzayo joined the three but his services were to be paid by the community.



17th March, 2003

The 247 community members were charged in court with three counts

Jointly found in possession of Plot Nos.36113, 34866 and 8444 of Hussein Dairy Limited without colour of rights and in manner likely to cause a breach of peace against Hussein Dairy Farm Limited who is entitled by law to the possession of the said land.

Setting fire to crops of cultivated produce contrary to session 334 (B) of the Penal Code

Being in possession of offensive weapons contrary to Session 11(1)(4) of the Public Order Act Cap 56, Laws of Kenya.


All the members arrested pleaded not guilty and they were released on a Kshs.10,000.00 bonds each.  Two days later, the Coordinator Mr. Nicholas Mrima Wanyepe together with the area Councillor Mr. Silvestor David Mataza and Mr.Nyale were charged at Kilifi Courts and both were given a bond of Kshs.200,000.00. The coordinator was instead charged in Malindi Courts and released on a bond of Kshs.1,000,000) one million shillings.


After a period of four (4) months the group of two hundred and forty seven (247) was acquitted without further charges.  Later on the case of the three (3), the Coordinator, Councillor and communities members were joined and recharged.  They again pleaded not guilty so the case continued to be heard.  During this time, community members went to court following up on the same.  The police then arrested Mrs.Glady’s Mbaga, the vice chairperson of the group who were later acquitted without further charges.


2005 COMMUNITY SUED HUSSEIN DAIRY LIMITED: THE KSHS.70 MILLION AWARD


Although the community members were charged to have invaded land belonging to The Hussein Dairy limited, it was later confirmed that Hussein Dairy was not the legally registered owner of the plots in question and the community sued him for malicious prosecution. The court ruled in favour of the community and ruled that Hussein Diary Limited pays as compensation upto Kshs.70,000,000 (Kshs.Seventy Million)  which Hussein Dairy has ignored to date.


MAY 2006  THE ARROGANCE OF THE MIGHTY


COMMUNITY SUES HUSSEIN DAIRY LIMITED FOR FAILURE TO PAY COURT AWARD


 In May 2006, Msumarini Umoja Self Help Group sued Hussein Dairy Limited for failure to honour court ruling to compensate the community Kshs.70,000,000.  The case is ongoing at Kilifi Law Courts. And Msumarini Umoja Self Help Group intends to file a case under the Advance Possession Act to enable them access the land.


CHALLENGES


On realizing the community’s tireless efforts to repossess the land using the available legal recourse, the land owners around Msumarini e.g. M/s Tororo Cement Company, Vipingo Estates, Hussein Dairy and others have now developed a ploy to sub-divide the land and sell it to unsuspecting buyers.  M/s Vipingo has already sold several thousand acres to Sunset Developers who are developing a golf club within the Sisal plantations.

Politicians and Politics – Struggle for access by the poor in Msumarini has bee marred by massive corruption involving politicians in the district and the provincial administration who pretend to understand the issues but tend to agree with the land grabbers at the expense of the poor.

The judicial system is expensive and takes long to dispense land cases.  A clear case in point is the current case in which M/s Hussein Dairy has failed to honour a court ruling is on its second year which makes it impossible for the poor to sustain such long bureaucratic procedures.  To file this type of cases is also very expensive as lawyers demand for at least Kshs.500,000.00 to file a case.  How can a squatter community ever raise money to sustain legal discourse?


IN CONCLUSION

Land conflicts in Kenya are essentially a question of might versus right.  Those with rights to own and are bundled out of the pieces they own by the might of those in government and unapologetic law abusers.  In the end, the might wins over rights.


In a very unjust system, land in Kenya is acquired through force, corruption, war and a host of legal injustices that leave the mighty with almost everything as the poor starvingly lick their lips. The Msumarini Umoja Self Help Group intends to leave a legacy on perpetual resistance and challenge to the rich in a bid to confirm that this land is ours by right and will never be theirs by might.






Edited by


Phyllis Muema

Project Manager

Ujamaa Center

P. O. BOX 517-80100

MOMBASA

KENYA

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