A private developer is embroiled in a legal tussle with the National Museums of Kenya (NMK) over the ownership of land at the Mtwapa Creek in Kilifi County.
In its submissions in the case filed by Mr Adil Awadh, who is claiming ownership of the land valued at over Sh150 million, NMK claims the site is gazetted as national ruins and monument.
The court has temporarily restrained NMK from trespassing on the land or demolishing a boundary wall around it.
Justice Evans Makori of the Environment and Land Court in Malindi also issued an order directing Mr Awadh not to deface or destroy any ruins or monuments that could be on the land.
The judge issued the order on February 27, pending the hearing and determination of the case.
Mr Awadh, apart from NMK, has sued Mr Haron Ndundi, Mr Richard Chonga and the County Government of Kilifi.
Justice Makori noted that Mr Awadh is claiming ownership of the land he acquired through purchase from a bank exercising a statutory right of sale at Sh150 million, which is also being claimed by NMK.
He further said that the root of the title held by the plaintiff (Mr Awadh) vis-à-vis the claim by NMK will have to be investigated through a hearing.
“I emphasise that the two warring ownership claims, whether land is private or public, will be settled at a hearing. What the court can do at this point is to order a status quo pending a hearing and determination of the case,” ruled Justice Makori.
In his application, Mr Awadh told the court that he is the registered proprietor of the land and remains in possession.
The plaintiff says that on March 28 last year, the Principal Secretary in charge of NMK, NMK officials and the other three defendants descended on the land with hired goons and county askaris.
He claims that they brought down the entrance gate and a section of the boundary wall despite being served with an injunctive order.
According to the plaintiff, none of the defendants have denied that they descended on his property to demolish the boundary wall.
Mr Awadh further argued that upon acquiring ownership of the land, he obtained approval from the county government, the National Environment Management Authority (Nema) and the National Construction Authority to construct the boundary wall.
The plaintiff also told the court that he believes that the defendants’ actions were not just about the land but about intimidating him into relinquishing it.
According to the plaintiff, his apprehension was realised on March 25 last year when officers from the county government informed him that as of March 26, the county government shall descend on the land to demolish the perimeter wall around it, prompting him to file the case.
On its part, NMK says that the “ruins on the north bank of Mtwapa Creek” were gazetted in 1935 as a national monument.
The court noted that the plaintiff admits that the area generally referred as “north bank of Mtwapa Creek” relates to all parcels of land, including the land in dispute that falls within Mtwapa Bridge to the right and northwards towards Kanamai-Kikambala.
NMK says that since the certificate of title produced in respect of the land was obtained in 1937 when the “ruins on the north bank of Mtwapa Creek” were already gazetted and preserved as monuments for public interest, the process of subdividing the land was illegal as it had become public land.
The court heard that the gazette itself did not confer NMK legal ownership of the gazetted properties but rather all parcels of land within which the gazetted ruins were situated became public protected land to be preserved for public purpose and benefit.
The county government also argued that the land remains a gazetted national monument and unavailable for allocation.
Justice Makori also ruled that since the case has elicited public interest, and as proposed by the NMK, a scene visit will be necessary for the court to appreciate the history in the proceedings.
He also issued an order that since Mr Awadh is in possession of the land, he remains in it and that the land may not be altered or transferred until the case is heard and determined.
