Lawyer Njoroge Regeru for del Monte company while replying to a preliminary objection application by Kiambu and Murang’a county government challenging the jurisdiction of the constitution court to hear and determine a case challenging the decision declining to extend its land lease to Del Monte Company.
BY SAM ALFAN.
Muranga County and Kiambu County Government has suffered a major blow after high court declined to transfer a suit challenging the two government decision declining to extend its land lease to Del Monte Company.
High court on Friday day ruled it has jurisdiction to hear and determine a case in which Del monte Company Kenya Limited has sued Murang’a county government for declining to extend its land leases.
Justice Joseph Onguto said the Environment and Land Court does not have express powers to exercise supervisory jurisdiction over subordinate, judicial and quasi-judicial tribunals.
“I have come to the conclusion that this court has a jurisdiction.
The substratum and detailed repertory of the constitutional rights alleged to have been violated and how they were violated would lead one to plausible conclusion that the matters do not fall within the exclusive jurisdiction of the Environment and land court and in the circumstances, I dismiss the respondents pleas of forum no convenience” ruled the learned judge.
It was the county government’s contention that jurisdiction in “all matters relating to the environment, use, occupation and title to land” are domiciled in the Environment and Lands Court.
They claimed that the appropriate court is the Environment and Land Court in Nyeri.
Mr Mereka for Muranga County Government submitted that, all matters relating to land including land-related constitutional issues are to be adjudicated upon by the Environment and land Court as anticipated by Article 162(2) of the constitution.
He was supported by Mr Kiugu for Kiambu County who replied in support of the preliminary objection as to jurisdiction adding that the matter is concerning a lease extension and that was the sole remit of Environment and Court has the same status as the high court but their jurisdictions had been isolated by both the constitution and statute.
In his response to their preliminary objection, Mr Regeru for Del Monte Company Kenya limited strongly opposed their application and submitted that the petition raises not only issues touching on infringement and violation of the Del Monte’s right to property as guaranteed under Article 40 but also issue to discrimination under Article 27.
He sought the dismissal of the County government preliminary objection dismissal and the file be placed before chief justice for empanelment of a three judge bench to hear the application.
He said the dispute does not relate to public and private or community land contracts neither does it seek a redress of denial violation or infringement of or threat to rights relating to a clean and healthy
environment.
“There is also no express jurisdiction to deal generally with matter touching on fundamental rights. The Preliminary objection is hereby dismissed,” he said
Through Senior Counsel Regeru, Del monte sued Murang’a county government and Kiambu County Government for declining to extend their land leases in the pineapple plantation farm.
In its court documents filed by Mr Regeru, Del monte says on October 1 2012, it made the requisite applications for extension of the terms of various leases to the relevant local authority in the county of Murang’a and Kiambu where the respective parcels of land are situated.
It says despite observing and complying with the statutory procedure, the two county governments have failed to issue the letters of ‘no objection’ for extension of the leasehold terms.
Instead, the county government of Murang’a as a pre-condition for issuing the letter of no objection ‘requested’ Del monte to demarcate and allocate to them at least 1500 acres along the Thika Kenol Highway for “public use”.
Del monte says the ‘request’ is not only unconstitutional but is also blatantly illegal as the County Government of Murang’a (CGM) has no basis to make such demands on them.
Murang’a County Government (MCG) is however opposed to Delmonte’s land leases being extended citing poor working and living conditions for the workers.
It claimed that the constitutional court where the case has been filed lacks jurisdiction to handle the matter.
It says all matters relating to the environment, use, occupation and title to land are supposed to be heard at the Environmental and Land court and specifically at the High court in
Nyeri.
Del monte engages in the business of growing premium quality foods, fresh and processed pineapples and fruit juice beverages.
It is Kenya’s largest exporter of the above named products and is also a subsidiary of Fresh Del Monte Produce Inc, a company listed on the New York Stock Exchange with a listed value of about 2 billion US Dollars.
The company in its court documents says on October 1 2012, it made the requisite applications for extension of the terms of various leases to the relevant local authority in the county of Murang’a and Kiambu where the respective parcels of land are situate
It says despite observing and complying with the statutory procedure, the two county governments have failed to issue the letters of ‘no objection’ for extension of the leasehold terms.
Instead, the county government of Murang’a as a pre-condition for issuing the letter of no objection ‘requested’ Del monte to demarcate and allocate to them at least 1500 acres along the Thika Kenol Highway for “public use”.
Del monte says the ‘request’ is not only unconstitutional but is also blatantly illegal as the County Government of Murang’a (CGM) has no basis to make such demands on them.
Through Lawyer Njoroge Rigeru, Del monte says the CGM through its officials has threatened its management severally to accede to the illegal and unconstitutional demands made by the said officials otherwise their leases will not be renewed.
“Failure to consider our application for extension of the terms of the leases is unreasonable, unfair and highly inefficient given the cyclical nature of our business, spanning over a period of three and a half years and therefore requiring advance planning,” it says.
It is alleged that the Senator of Murang’a County requested petitioner to donate 200 acres of land for private investors to put up a hospital and university.
Del monte says in 2014, it paid in excess of Shs 528 million as taxes to the Kenyan exchequer. The company has also invested in 8 nursery schools, 3 day care centers as well as 3 primary schools at the villages located within the farm.
It says in total, the pineapple farming cycle takes an average of three and a half years from planting of the first crop to uprooting of the crop and a fallow period before the next crop is planted.
It takes the fruits 18 to 20 months to mature after planting. After the first harvest, the plant produces another fruit 16 to 18 months later. Thereafter the plant is uprooted and the land left fallow for a period of 3 to 6 months.
This is done in order to break the pest cycle.
