[UAH] To pay or not to pay? Ruto’s dilemma after being slapped with Sh5m fine for trespass - Politics - nation.co.ke
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By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, July 13 2013 at 23:30
Deputy President William Ruto is in a dilemma on whether or not he should appeal against the court decision compelling him to compensate a farmer Sh5 million for trespassing on his land.
Mr Ruto's lawyer, Mr Katwa Kigeni, has indicated that they will appeal against the judgment delivered by the High Court on June 29.
The Sunday Nation has established that Mr Ruto has since sought the opinion of various senior counsel on the matter.
While a section of his advisers have counseled that he should go ahead and pay the fine to bring the matter to a closure, others argue that doing so will be an admission of wrongdoing.
Those opposed to an appeal say it is unnecessary, a nuisance and could further taint his image. Moreover, they have cautioned that the Appeal Court may deliver a more adverse ruling that could injure Mr Ruto's standing and threaten his position.
There are also those who argue that though separate, payment of compensation in the land dispute could be used by the prosecution at the International Criminal Court where he is charged with among others counts, forcible transfer of population.
But failure to pay the compensation may trigger contempt of court charges. Opinion is split on the matter with some lawyers arguing that the land dispute had no bearing on the ICC case because it was a matter of trespass within the ambit of national jurisdiction.
The High Court ordered the Deputy President to pay Mr Adrian Muteshi the money for depriving him access to the land and the benefits he would have accrued from it.
Mr Muteshi had accused Mr Ruto of evicting him from his land in January 2008 as post-election violence raged.
Though the court did not find him guilty of fraud, it ordered him to pay the Sh5 million for trespass. The suggestion was that Mr Ruto was a victim of fraud by officials at the Lands ministry.
And there lies the bone of contention, as Mr Kigen explained.
"I have explicit instructions to appeal. We are asking why my client should pay compensation now that there was no finding of wrong doing.
"The concern is that payment implies fault on our side. We proved that both the act of possession and ownership were guaranteed by the Lands ministry," he said.
However, after Ruto's lawyers realised that that the ministry could not defend the title, they conceded to surrender ownership but Mr Muteshi insisted on compensation.
On the other hand, lawyers who are against any appeal process are concerned that the Appeal Court might review the High Court decision and deal with it as a matter of fraud.
"The court may adversely hold that the client, as a beneficiary of the transaction, was guilty of fraud. Such finding would be a calamity which can only be overturned by the Supreme Court which unfortunately does not ordinarily accept to hear appeals from the Appellate court," they have advised.
The lawyers argue the compensation outweighs the appeal which might be seen as a situation where a leader is pursuing property at any cost and against a "hapless citizen".
They further said that the appeal may not work in Mr Ruto's favour because he was not involved in the fraudulent acquisition of the 100-acre farm and that he was as much a victim as the land owner.
Instead, the legal team has advised him to settle the matter by handing over the land to Mr Muteshi and paying the Sh5 million.
"This situation should be buried neatly by a handover of the land and an acknowledgment that even before the judgment, the deputy president had offered the property but the land owner made huge financial demands which made discussions to collapse," said the legal advisers.
On Saturday, Mr Muteshi indicated that he was unaware of the appeal notice. The farmer also said that Mr Ruto had not contacted him over the compensation.
"I am still waiting. I heard about the intention to appeal from the media. My lawyer has not been officially notified," he said in a telephone interview.
He said he will soldier on in his fight to restore rights to the use of his land and get compensation as ordered by the court.
The High Court was persuaded that Mr Muteshi had proved the property was his and that he had been deprived of it, but that Mr Ruto was not involved in the fraudulent takeover of the land since he purchased it from persons he considered trustworthy but who turned out to be dishonest.
"I can only find that Mr Ruto was a trespasser and was farming in the land without the consent of the owner. That is why he is to compensate Mr Muteshi for the period he was denied access and possession of his property," ruled Judge Mary Ougo.
She issued a declaration that all the transactions effected on the land by the DP were invalid and ordered the district land registrar to reinstate the farm's title to Muteshi's name.
The court also ordered that Mr Ruto and all his servants be evicted from the land under supervision of the police.
Mr Ruto, in his defence, stated that he was an unsuspecting buyer who heard that some land was being sold and conducted due diligence before purchasing it from people he believed were the owners of the property.
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