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Former President Daniel Toroitich arap Moi. Taking retired President Moi to court during his 24-year rule was an unheard of phenomenon. It was like an abomination. FILE PHOTO | NATION MEDIA GROUP
Taking retired President Daniel Moi to court during his 24-year rule was an unheard of phenomenon. It was like an abomination.
Nobody in his right senses could dare sue him due to the immense power he wielded and authority that came with the office of the President. The man was above the law.
What was hitherto impossible changed when Mr Moi retired and handed over the presidency to Mr Mwai Kibaki in 2002.
Floodgates of law suits started trickling in 2003 against the former president ranging from people claiming he illegally and forcefully took away their properties to those claiming he violated their rights through detention.
Nakuru-based rancher Malcolm Bell summarised how he had wished to sue Mr Moi earlier for forcefully taking his father's 100-acre farm in Kabarak, Nakuru County in 1980.
"I could not go to court earlier because I could not sue Mr Moi while he was the President. I had to wait for him to retire to institute the proceedings," Mr Bell said.
What followed was a bruising 10-year court battle that ended at the Supreme Court, with Mr Bell finally winning his land back.
The dispute started in 2003 when Mr Bell sued Mr Moi for trespass, claiming that the former President coerced his late father Ginger Bell into donating the 100-acre land to Kabarak High School in 1980.
It took three years at the High Court where Mr Bell got a first blow to his quest in 2006. Justice Muga Apondi dismissed the ruling that Kabarak High School had acquired the title deed by adverse possession and allowed the institution to continue occupying the land.
MR MURIITHI TOOK IT OVER
What followed was another six years at the Court of Appeal, and which turned out victorious for Mr Bell.
Appellate judges Martha Koome and Hannah Okwengu upheld Mr Bell's appeal and ordered Mr Moi to surrender the land to Mr Bell within six months or face eviction.
The rancher's final victory against Mr Moi came in 2013 when the Supreme Court reaffirmed the Court of Appeal decision.
The judges ruled that they had no jurisdiction to overturn an order by the Court of Appeal directing the former President to vacate the land or face eviction.
"The jurisdiction of the Supreme Court may not be invoked just merely for appeals but in matters that raise serious constitutional violations. It is our view that this matter was well settled and does not qualify to be entertained before us," the judges said during the ruling.
The ruling put at risk the existence of Kabarak institutions built on the land but the parties went in negotiations to resolve the dispute.
Mr Moi's former intelligence chief and business associate Stephen Muriithi followed suit and sued the retired President for unlawfully detaining him in 1982 and short-changing him in the businesses they co-owned.
In 2011, Justice Jeanne Gacheche found Mr Moi liable for illegally detaining Mr Muriithi, ruling that the detention without trial was not meant to preserve public security but for the former Head of State to secure personal and ulterior commercial advantage over his business associate.
She then ordered the former President to pay Mr Muriithi a cumulative Sh1.96 billion as damages plus interests.
Among the properties Mr Muriithi claimed they co-owned were parcels of land in Nairobi and Nakuru, which were registered under three investment companies called Fourways Investments Limited, Sheraton Holdings Limited and Mokamu Limited.
Other properties he claimed they acquired jointly with Mr Moi are Corner House, Atlas Building, Ruprani House and Kenwood House, all in Nairobi.
The retired President, however, got a reprieve in May last year after the Court of Appeal overturned the High Court decision.
FORMER JOURNALIST
Appellate Judges John Mwera, Daniel Musinga and William Ouko while setting aside the judgment ruled that Justice Gacheche made a mistake in relying on untested evidence to award the amount.
"Claim by Mr Muriithi that they jointly had three companies with Mr Moi to a certain percentage of shares was not proved. His claims that Mr Moi sold off and transferred some of the properties were also not proved and we find the judge made an error in assuming those facts existed," they ruled.
On Mr Muriithi's detention, the judges ruled that he sued the wrong person since it was not the Mr Mo who ordered his detention.
They upheld the former President's arguments that the judgment was arbitrary and contrary to law in material respects since he unfairly stood to suffer massive financial losses if the decree to pay the Sh1.9 billion was executed.
Mr Muriithi has, however, filed an appeal at the Supreme Court seeking to reinstate the High Court ruling that awarded him the amount.
Mr Otieno Mak'Onyango's budding career as a journalist was cut short in 1982 after he was detained without trial over allegations that he participated in the failed 1982 coup.
He was charged alongside Orange Democratic Movement leader Raila Odinga for trying to overthrow the government and denied all the allegations.
The moment to relive the pains he underwent during the five-year detention came after Mr Moi relinquished the presidency.
Mr Mak'Onyango, who served as Alego-Usonga MP between 1992 to 1997, sued Mr Moi and the government in 2003 for illegal and unlawful detention.
His long, 10-year wait for justice came in 2012 when Justice Kalpana Rawal awarded him Sh20 million as compensation for unlawful detention.
Justice Rawal ruled that the detention of Mr Mak'Onyango for five years without trial was unconstitutional, illegal and unjustified and that he was entitled to payment of damages of the inhuman act committed by state officers.
"No role can be done by State officers without remedy. Mr Mak'Onyango lost five years without friends or family and the violation of his rights he went through cannot be wished away. Sh20 million is therefore a fairer and reasonable amount to compensate him," ruled judge Rawal.
The judge, however, absolved Mr Moi from personal liability, ruling that there was no evidence of individual misconduct in the detention of Mr Mak'Onyango and that it is the Attorney-General who should carry the burden of illegal acts perpetrated by government officers.
While discharging the former President from any liability, the judge ruled that the complaints raised by Mr Mak'Onyango were perpetrated by police officers who were under instructions to enforce the law.
"Any court shall not hesitate to hold Mr Moi liable if proved he committed any unlawful act but in this case, it his personal involvement as head of state has not been proved and therefore discharge him from any liability," ruled the judge.
MS SERONEY
Mr Mak'Onyango had submitted that Mr Moi should be personally held responsible for his detention because as the Head of State, he had the preserve of ordering people to be detained and that the security officers only acted on his behalf to execute his wishes.
Mrs Zipporah Seroney, widow of former Nandi MP Jean Marie Seroney sued Mr Moi for persecuting her huband, leading to his death in 1982.
She refused to testify and the case had to be adjourned because she wanted the former President to be personally present in court so they could look eye to eye as he answers questions she has for him regarding the death of her husband.
"My wish was to see Mr Moi sitting opposite me in the dock while I am giving my evidence. I wanted to see him eye to eye as he answers the questions over the death of my husband," Ms Seroney told Justice Isaac Lenaola.
Ms Seroney claimed in her petition that if it was not for the action of Mr Moi, her husband who served as a Member of Parliament from 1961 to 1975 would have not died in December 1982.
She swore that her husband was detained at the behest of Mr Moi who allegedly continued to persecute him after he assumed the presidency until he died.
According to the widow, they were thrown out of the family home and when she attempted to return in 1991, she was violently turned back in an incident which made her family lose all their property.
She argued that the former President abused his powers by ordering the arrest of the late Seroney within Parliament buildings and detaining him for prolonged period of time which action denied his family rights to his protection.
She swore that during her husband's detention, she and her children fell ill on numerous occasions due to lack of support and blamed Mr Moi for their downfall.
"I tried on many occasions to seek audience with Mr Moi without success. He only agreed to meet me in 1991 at Kapsabet but instead of giving me audience, he ordered that I be stripped half-naked by his security officers and locked up at a police station. This left me shocked, traumatised and I have not recovered up to today," said Seroney.
She swore that Mr Moi's hatred and animosity towards her late husband begun during the struggle for independence and after he assumed office, it became his policy to torment and abuse her late husband's family.
She added that Mr Moi caused her family to lose 1,500 acre farm, their family home and vandalism of their property.
The case is pending determination before Justice Lenaola.
ENTERS BUSINESSMEN
Buoyed by the multiple lawsuits against the retired President, four businessmen sued Mr Moi for allegedly grabbing their land and transferring it to a private company.
Mohammed Koriow Nur, Simon Kiprono Laboso, Macdonald Lijoodi Maraka and Noor Mohamed Hassan claimed that Mr Moi illegally and without any justifiable cause transferred the 16-acre piece of land situated near City Cabanas in Nairobi to Tulip Properties Limited.
The businessmen swore that the land was allotted to them in 1989 and they continued to pay rates as per the terms of the certificate of lease until 1996 when the retired president grabbed the piece of land and transferred it to Tulip Properties Limited.
"The transfer was illegal since Mr Moi was a trustee of the government land and had no capacity to allocate himself a government land then transfer it to a private company," they said in their affidavit.
According to them, Mr Moi was never allocated the piece of land by the Commissioner of Lands and that even if he had a piece of land to offer for sale then he could have undertaken the lawful procedures.
The businessmen sought a court declaration that an alleged deed plan registered in the names of Mr Daniel Moi and the transfer of the land from him to the company are null and void and that the same were acquired unlawfully in total breach of Kenyan laws.
They want an order for the Commissioner of Lands to cancel both the deed plan and transfer title and a permanent injunction stopping the company from entering or developing the 16-acre plot.
The businessmen told the court that they paid the commissioner a total of Sh1.4 million as premium duties and that the former President never applied for a certificate of valuation to assess the stamp duty, which made the transfer illegal.
"The consideration of Sh25 million the company allegedly paid to Mr Moi for the purchase of the land is contradictory since it was given to them as a gift and one cannot sell a gift," they said.
They added that the title allegedly issued to the retired president and which was subsequently transferred to Tulip Company cannot stand the test of sanctity since it was issued fraudulently without any basis in law.
According to the businessmen, the purported grant to Tulip Properties was as a result of abuse of public office to confer a benefit to an entity through acts of impunity which are a violation of the constitution.
The case is awaiting determination at the High Court.
Although former detainees during retired President Moi's regime sued him and the government, most compensation and awards have been directed to the government. The awards has since seen the former political detainees pocket between Sh1 million to Sh50 million as compensation for the torture and inhuman treated meted to them by the government forces.
Among the list of those who have benefited from Mr Moi's crackdown on dissidence during his rule are former Imenti Central MP Gitobu Imanyara, former Githunguri MP Njehu Gatabaki and former Subukia MP Koigi wa Wamwere.
Source: nation
MY OPINION
Sheria musumeno, naona wakenya wameunoa kikatiba!!!