Court blocks community bid to reclaim ancestral land from KDF

The Court of Appeal has granted the Chief of the Kenya Defence Forces and the Ministry of Defence a reprieve from eviction from a disputed parcel of land in Marsabit County.

In a ruling delivered on Friday, Justices Sankale ole Kantai, Jessie Lesiit and Lillian Ali-Aroni held that national security interests outweighed the immediate enforcement of a High Court judgment that had declared the land community property.

The case pitted the Chief of the Defence Forces and the Cabinet Secretary for Defence against 18 members of the Rendille and Samburu communities.

The High Court had found that the KDF unlawfully occupied the land without following the proper procedures for acquiring community land and awarded the respondents Sh30 million in damages.

The judgment had ordered the Ministry of Defence to vacate the land and demolish its military infrastructure within one year.

State counsel argued that the loss of the base would be irreversible and detrimental to the country’s territorial integrity.

Execution of the High Court orders, the State said, would require the Ministry of Defence to vacate the suit property and demolish or remove the structures within one year from the date of judgment.

Such loss, it argued, would be irreversible and not compensable in the public interest.

In response, the community members maintained that the KDF had “forcibly and unlawfully entered” the land after court proceedings had already commenced.

The military, they said, had created its own misfortune by unlawfully occupying the land and could not seek the court’s protection for such illegality.

A public participation report annexed to the respondents’ pleadings showed that the applicants had allegedly admitted that the land was communally owned.

The respondents further argued that the community had provided the military with an alternative parcel of land at Matalama in 2013, where it could establish its training camp and security infrastructure.

Despite these objections, the three-judge bench found that the risk of wasting public funds and the sensitivity of the military’s mandate justified a stay of execution.

The judges said that although the structures on the land might be temporary, public funds had been spent and might not be recoverable if the appeal succeeded.

“KDF is a public body funded by public resources, and the issues of national security and public interest arise in this application,” the court said.

“In our considered view, public interest militates in favour of granting orders of stay pending the hearing and determination of the appeal.”

The KDF will retain possession of the land pending the full hearing and determination of the appeal.