BY DUKE LENCH
Early on Saturday November 1, 2014, about 300 Maasai morans, armed with bow-and-arrows, machetes, and spears, invaded a private property belonging to Nguruman Ltd, on the Nguruman Escarpment, in southern Kenya. They assaulted 76 staff on the said property, before they chased them into the wild and held a small number hostage. The invaders would later occupy the said property.
The invading group is said to enjoy the protection of local politicians and a number of top police officers.
According to sources, the invaders belong to the Shompole Group Ranch (SGR) who own the Kajiado/Shompole/3 title, measuring 154,905 acres. It has 1,959 members. Their immediate neighbours, Olkiramatian Group Ranch (OGR), own the title Kajiado/Olkeramatian/17, which measures 53,381 acres. The total membership of OGR is 1,451.
Nguruman Ltd, in its inception, is a company started by 14 Maasais in 1986, and their current ethnic constitution in 2014 is 70% Maasai. It was founded by the previous Nguruman Kamarora Group Ranch (NKGR), who owned the title Narok/Nguruman/Kamorora/1. The NKGR then transferred the land and the title to Nguruman Ltd on January 13, 1986, and dissolved the group ranch.
The former leaders and office bearers of the Nguruman Kamarora Group Ranch were the sole shareholders and directors of Nguruman Ltd. The current chairman of Nguruman Ltd, Moses Mooke Loontasati Ololouaya, is the same individual who formed the Nguruman Kamarora Group Ranch.
The SGR and OGR are both properties in Kajiado County. Their western boundary is also the County boundary (formerly district) between Kajiado and Narok counties. SGR and OGR’s neighbour to the west, in Narok County is Nguruman Ltd, in the traditional ancestral area of the Loita Masai. It is not part of Kajiado or the Lodikilani Maasai who hail primarily from Kajiado and make up the sub-clan members of the SGR and OGR Maasai.
In 1990 members from the SGR and OGR trespassed into the Nguruman Ltd property in Narok County. They cut down fruit trees and destroyed orchards for illegal charcoal, broke fences, stole cattle, and severely injured employees. They claimed that a portion of the Nguruman Ltd property was in Kajiado County and belonged to them, and that they would continue to act in such a manner until the said land was returned to them. Effectively, they were contesting the Kenya Government’s demarcation of the Narok-Kajiado boundary, having shared the same boundary for 20 years without protest with the NKGR which became Nguruman Ltd.
In order to solve the matter, in Narok RMCC No. 15 of 1991, through a court mandated process, the boundary between SGR and the Nguruman Ltd was determined by the Land Registrar to be the Narok-Kajiado district boundary. The Registrar determined that the claim by SGR “is unsupported by the physical evidence and the map of the area”, and as a result the Resident Magistrate Narok permanently restrained SGR from trespassing into the Nguruman ranch as “physically marked in the official records and also confirmed by the District Land Registrar with the District Surveyor Kajiado on 27/9/1991 in the presence of both the Plaintiff (Nguruman Ltd) and the Defendant (Shompole Group Ranch)”.
The salient point in this matter is that the Laws of Kenya do not allow for a title to traverse a district/county boundary. This law, pertaining to districts and titles, was in place when the SGR and OGR were formed, and it is therefore legally impossible for any portion of a title belonging to SGR or OGR, to be in Narok County or on Nguruman Ltd’s property. This would have been the case when SGR and OGR were formed, and the same remains true today.
In 2001, a group of people from SGR and OGR continued their defiance of the law and the orders of the court and again invaded the Nguruman Ltd property. Their actions mirrored those of 1991 whereby they violently assaulted and injured unarmed employees of Nguruman Ltd, destroyed fences within the property, and cut fruit trees for the purposes of illegal charcoal.
The only option available to Nguruman Ltd was to commence HCCC 145 and 146 of 2001 against the two group ranches, again hoping for the courts and justice to prevail, and for some measure of security to be provided against the invaders.
The two cases were subsequently transferred to the High Court in Kericho for hearing. In 2009 the cases were finally determined in favor of Nguruman Ltd who was awarded costs and damages, and eviction orders were issued. The damage, financial and otherwise, suffered by Nguruman Ltd through the illegal acts of the SGR and OGR invaders, significantly exceeds the amount awarded by the courts.
Five years after this court order, the illegal occupation of land owned by Nguruman Ltd continues unhindered, and both the SGR and OGR have failed to pay any amount of the costs or damages ordered by the courts in 2009.
In April 2014, the chairman of Nguruman Ltd, Moses Ololouwaya, seeking a peaceful solution, held a meeting in Magadi with the office bearers of the two group ranches, as well as leaders and elders from the area, as is the Maasai custom at this all Maasai affair. At that meeting, Mr Ololouwaya proposed that if the trespassers from the SGR and OGR peacefully moved out of the Nguruman Ltd property, the company would be willing to negotiate a solution with both parties on how they could pay the costs awarded by the court in 2009 without being exposed to further action, which was likely to be an auction of their land. All parties present at the meeting agreed that the invaders would leave the area belonging to Nguruman Ltd which they had trespassed into and occupied, and return to their own land in the SGR and OGR.
A deal had been made in the old and traditional ways of the Maasai.
Four weeks after that meeting, the trespassers continued to occupy the land inside the Nguruman Ltd property they had promised to vacate and the group ranch office bearers from the SGR and OGR abandoned the agreement and encroached further in greater numbers. The areas which they continue to illegally occupy are being used to produce contraband charcoal for sale on the black-market in Kenya and Tanzania, and to manufacture bootleg home-brews for bars in Magadi and Narok.
On Wednesday June 25, 2014, SGR members held a meeting inside the Pakase area of the Nguruman Ltd property, without the consent of Nguruman Ltd, in complete disregard for the laws of Kenya. The meeting was attended by various politicians and public officers including the Chairman of the National Land Commission Mohammed Swazuri, and the Governor of Kajiado David Nkedienye.
During the course of the meeting, which was covered by the ever vigilant press, the group ranch members presented that a “white person” had stolen the property from them by fraudulently hiving off a piece of their land and getting a title for the same. They went on that they now stood to be evicted off their ancestral land as a result of inability to pay various fines.
Mr. Swazuri allegedly told the gathered crowd that he would cancel the title belonging to Nguruamn Ltd within a fortnight. Both Mr Swazuri and Mr Nkedienye actively riled and rallied the Maasai present not to be cowed, to be brave.
After the meeting, a greater number of people from SGR and OGR trespassed further into the property belonging to Nguruman Ltd, believing that with the support and promises of politicians they would be protected with some form of blanket amnesty. However, in all this, Nguruman Ltd received no communication from the National Land Commission whatsoever.
In the weeks after the said meeting Nguruman Ltd wrote to Mr. Swazuri and to Mr. Nkedienye asking them to apologize for their public statements and threats, and asking them not to incite an already volatile situation and not to actively defy the law and existing court orders. Despite their previous public performances, neither individual responded.
Concerned about a repeat of the raids and attacks of 1991 and 2001, Nguruman Ltd went to court to seek help to enforce the eviction orders awarded in 2009 in order to protect their property, their assets, and their staff.
On July 3, 2014, police assistance orders for the eviction were issued by the High Court in Kericho. The orders were given to the Nairobi police commander Benson Kibue, by Nguruman Ltd. He made numerous promises to act upon the same, but it unsurprisingly transpired that his promises were vain. He did not deliver what he promised and what was ordered.
With no law or order prevailing on the Nguruman Escarpment, the members from the SGR and OGR continued to trespass and populate ever larger areas of Nguruman Ltd’s property, without any repercussion, despite the rulings and orders of the court. They also continued to actively produce illegal charcoal in growing quantities for small scale commercial purposes.
As the trespass and encroachment continued into August 2014, and with Mr. Kibue having done barely anything, Nguruman Ltd complained directly to the then Inspector General for Police (IGP), David Kimaiyo, who then immediately issued letters with instructions to act to his two deputies Grace Kahindi and Samuel Arachi. The whirlwind result was two recce missions to the Nguruman Ltd property, and complete surveys and reports pertaining to the eviction, but no action.
After the two recce missions, Nguruman Ltd contacted Mr. Kibue, to find out when the court order would be executed, with the groundwork now having been carried out to assess the situation and provide all of the necessary intelligence. Mr. Kibue then claimed that he had sent the reports to the IGP and was waiting for his orders.
According to Nguruman Ltd officials, Mr. Kibue made himself completely unavailable, refusing to take calls and not keeping any meetings.
Nguruman Ltd then filed a complaint with a legal officer in the Kenya Police Titi Ayiera concerning the lack of action on the part of Kibue, Kahindi and Arachi despite the orders of the court and those of the IGP. Mr. Ayiera then wrote to the IGP to inform him of the same. The IGP then issued direct orders to Kajiado County Commander, Joel Langat, to carry out yet another recce and report directly to him. Mr. Langat carried out his orders, issued a report, but neither him nor the IGP took any action.
At the beginning of October 2014, Nguruman Ltd was still awaiting assistance from the Kenya Police as demanded by the High Court. The ongoing invasion continued deeper, with the prospect of another attack. There appeared no prospect for negotiation. Seemingly the invaders received tacit backing of senior politicians and top State officials. With that being the state of play, Nguruman Ltd returned to the courts and on October 9, 2014, and received orders from the High Court in Kericho enabling the sale by public auction of the group ranch properties.
On October 23, various politicians, including Nkedienye, and area MPs Joseph Nkaissery (now Cabinet Secretary for Internal Security), Peris Tobiko, and Moses Sakuda met with the then Cabinet Secretary for Interior and Coordination of National Government Joseph Ole Lenku, where developments in the Nguruman Escarpment were the sole topic of conversation. Immediately after the meeting, the politicians held a press conference at a Nairobi hotel in which they raised questions about the orders from the High Court.
With another meeting scheduled to take place on October 31, 2014, and with no help in sight from the police or the courts, one of the directors of Nguruman Ltd contacted Ole Lenku to try to explain the situation to him, in the hope that the facts would prevail and that a peaceful accord might be reached. Again, Nguruman Ltd was trying to broker a peace, despite the courts having ruled in its favour. Mr. Ole Lenku said that Nguruman Ltd were now “dealing with the government of the day”, according to those privy to the deliberations. He raised matters that could easily be construed as racist.
On the evening of October 29, 2014, the Chairman of Nguruman Ltd, Moses Ololouwaya, received information that after the meeting scheduled for October 31, 2014, the group ranch members from the SGR and OGR planned to invade Nguruman Ltd’s property, burn its lodges, and chase away all of its staff. Nguruamn Ltd conveyed this information to:
The Kajiado County commander of Administration Police via telephone on October 30, 2014. He said Nguruman Ltd should report it to the County Commander Nairobi.
The Officer Commanding Police Division Narok North Sub County, who promised to discuss it with the County Commander Nairobi and would take action.
The Officer in charge of operations for Nairobi County
The Nairobi County police commander via SMS. He acknowledged receipt of the information and responded via SMS.
Thus, senior command of the Kenya Police was aware of the goings-on and therefore in a position to prevent the crimes of trespass, arson, and theft.
On the same day, October 29, a director of Nguruman Ltd was sent a text message from Ole Lenku’s personal mobile phone. The message comprised a report that the then Cabinet Secretary had received a brief on the activities of Nguruman Ltd and “white” director. It read as follows: “Even sir .. There are reports that … plans to restrain leaders from holding the Friday mtg, Shompole, through a court order. We will update you on this tomorrow.”
Of course, this kicked off questions as to whether Ole Lenku was using taxpayer money, and the resources belonging to the Government of Kenya, to pursue what appeared a personal agenda. To observers, the text message incriminated Ole Lenku one way or the other. It may have been intended to demonstrate to the “white” director that he was being watched by the government. If this is the case, then it is possible that Ole Lenku was in the know about the happenings in Nguruman. And if it was sent by mistake, the then CS may find himself embroiled in the controversy.
It also begs the question about the amount of information he possessed and the amount he chose not to act upon.
On October 30, 2014, Nguruman Ltd filed proceedings in the High Court at Machakos against Nkedienye to prevent him from chairing and/or attending the meeting due the following day. The High Court awarded in Nguruman Ltd’s favour and also ordered that the Kajiado County police commander provide adequate protection for Nguruman Ltd’s property, staff, and resources on the Nguruman Escarpment.
On the morning of October 31, 2014, a vehicle belonging to the Kenya Wildlife Service (KWS) came to the Nguruman Ltd property and rounded up all of its eight officers and left the property. This decision by the KWS was completely unannounced, and there was no communication with Nguruman Ltd pertaining to the same. The officers had been on the Nguruman Ltd property at the request of Nguruman Ltd to protect wildlife in the area, significant amounts of which had come under threat over the course of recent history.
Since the early 1990’s, when members from the SGR and OGR invaded the boundary regions of the Nguruman Ltd property, poaching has been an issue. Illegal hunting of wildlife, and elephant poaching on the Nguruman Escarpment, particularly through the lowland areas of the SGR and OGR where access is unchallenging, has become a serious issue. Due to the remote location and sparse populations, a large amount of the poaching happens without ever being reported, and the ivory and other trophies get walked across the border into Tanzania, without anyone ever knowing.
Thus, Nguruman Ltd had asked for KWS officers to be on their property in order to try to protect as much wildlife as possible, including the elephants. The complete lack of police cooperation in allowing Nguruman Ltd to secure their property has been a major stumbling block that allowed these activities to continue unabated.
The same morning, October 31, 2014, Nkedienye was served with the orders from the High Court at his home in Kajiado, ostensibly preventing him from attending the meeting. The area police commander was also served with orders from the High Court, stating that he should provide adequate protection for Nguruman Ltd’s property, staff, and resources on the Nguruman Escarpment. However, there wasn’t any move by the two senior public servants to obey the orders.
The meeting proceeded to be held on the afternoon of October 31, 2014. The VIP’s in attendance who arrived by helicopter included:
5Y-KWM (KWS helicopter), Swazuri , Nkedienye , Deputy Governor of Kajiado County, and a member the National Land Commission.
5Y – HLI, two area MPs and the Kajiado County Commissioner.
5Y – MNJ , a Kajiado MP and top official of Kenya Meat Commission.
5Y – JNM, an MP, a County police commander, an area Senator.
The helicopters arrived at noon and left four hours later. The presence of a KWS helicopter used to ferry some of the politicians ordered by the High Court not to attend the meeting, left many questions than answers.
Yet, what exactly transpired during the meeting is unclear, but in the late afternoon, the County Commissioner for Kajiado called Nguruman Ltd and told them he had been at the meeting. He said that temperatures amongst the various participants were very high. He advised Nguruman Ltd to immediately vacate all of their staff from the property. Nguruman Ltd told the County Commissioner that it was not possible for them to leave all of their property unattended, especially in light of the information provided to them by the County Commissioner. They asked his assistance in getting police to provide security, but the County Commissioner told them that it would not be possible at all.
The police officer in charge of Ngong and his administration police (AP) counterpart were also present at meeting. Despite the apparent incitement during the meeting as noted by the County Commissioner, no police officer chose to intervene or act, or put in place any security measures whatsoever.
The following day, in the early hours, 300 heavily armed people from the SGR and OGR, defied the law and invaded the Nguruman Ltd property, and openly defied the law, without fear of consequence. Police just looked on. As soon as the invasion began Nguruman Ltd reported the invasion to the Kenya Police and specifically to:
County Commander Nairobi
The officer in charge of Operations Ngong Police station
AP Commander Kajiado County
County Commander Kajiado County
OCS Magadi Police Station
Inspector General of Police David Kimaiyo (at the point when the incident was reported to him, he said he was at a meeting in State House and said that Nguruman Ltd should contact County Commander Nairobi).
Later that day, having escaped with his life from the invaders, the farm manager of Nguruman Ltd, Mr. Gordon Onduru, arrived at Magadi police station together with other staff who had been violently chased off the property. He reported the invasion and it was recorded under OB 1/11/2014 No. 6. The police in Magadi did nothing.
On Sunday November 2, 2014, the invaders burnt Nuguruman Ltd’s Olduvai Camp. They looted and pillaged, helping themselves to everything they wanted. The following day they occupied Laro Lodge, threatened the staff before chasing them into the bush, and then began to dismantle the business. Nguruman Ltd reported the burning of Olduvai Camp and the destruction of Laro camp to Ngong Police Station via OB 35/3/11/14. The police did nothing.
On Monday November 3, 2014, the High Court in Machakos issued various orders in favour of Nguruman Ltd, including attaching the property of Governor Nkedienye for his contempt of court and incitement, and further ordered the Inspector General of Police to flush out the invaders and provide security with immediate effect. The IGP was also ordered to investigate Ole Lenku and others for incitement.
An aerial survey of the Nguruman Ltd property on November 4, 2014 placed the initial estimates of the damage at approximately Sh2 billion. The arson was not limited to Olduvai Lodge, but also extended to Enkeshui and NgareKeti camps.
Curious development thereafter have raised questions about Ole Lenku’s involvement or otherwise in the goings-on in the matter. Did he have vested interest in this matter?
On November 10, 2014, the chairman of Nguruman Ltd spoke to the Narok County Commissioner Kassim Farah in a desperate attempt to try to find some quarter of law and order that would be able to help. He said he was already aware of what had transpired, largely through the media, but also from updates that he had received from the County Commissioner in Kajiado. He said he was very sorry about what had happened and that it was “completely illegal and wrong”. He said the Governor of Narok Samuel Kuntai Ole Tunai was livid beyond reproach that the members of the SGR and OGR had invaded the Nguruman Ltd property in Narok County, and were half-wittedly claiming that it was in Kajiado.
One week later, the Loita Maasai from Narok invaded the Nguruman Ltd property and promised to chase the Maasai invaders from Kajiado, largely made up of IloodoKilani Maasai from the SGR and OGR, off their ancestral land. This raised questions about initial reports that the land belonged ancestrally to the Maasai.
It would appear that the SGR and OGR have been deeply embroiled in internal conflicts, and their quarrel with Nguruman Ltd is a spillover of local politics.
The internal troubles came to the fore in 2009 when Jan Bonde Nielsen, a Danish national, got embroiled in the controversy. In his bid to seize the Nguruman property, he allegedly lobbied local Maasai from the SGR and OGR, and ultimately divided them by investing heavily in particular members. This subsequently fuelled internal clan disputes. The damage of Nielsen’s support would ultimately lead to members of the SGR forcing the closure of the Shompole Lodge amidst a series of protests.
Sources within the SGR and OGR have also reported that there is a growing divide amongst the various members of the two group ranches who have begun to realise the reality of the dire consequences, legal and otherwise, which they now find themselves in. It is also believed that, in consultation with various traditional leaders and Maasai elders, a small number of office bearers and members from the SGR and OGR intend to bring prosecutions against a number of leaders and politicians who have been “advising” them over the course of 2014. It is believed that the various members of the SGR and OGR intend to try to use the litigation as a means to negotiate a settlement with Nguruman Ltd and distance themselves from the actions of the SGR and OGR.
On 11th November 2014, Nguruman Ltd received reports that their vehicles which were on the property when it was invaded, were being used by the invaders to transport stolen goods from Nguruman Ltd to markets in Kenya and Tanzania. It was also reported that they had tried to sell their vehicles in Tanzania. The vehicles have also been reported to have been used at night for purposes yet to be established.
Now Nguruman Ltd has been left to wonder whether the State can protect its property from invaders.