The Environment and Land Court has dismissed a petition by a Kilifi family seeking Sh13.7 billion compensation for vast land allegedly compulsorily acquired by the government and subdivided to third parties.
Justice Evans Makori said Khadija Khaidum Nabhan and Atwiya Haidum Nabhan did not adduce evidence of how they acquired the 3,461-acre land in Mazrui reserve and how they were related to Rashid bin Salim, who was one of the trustees of the Mazrui board.
The two petitioners had described themselves as administrators of the estate of one Rashid Bin Salim, which they claimed was the duly registered owner of the property on Mazrui Reserve in Mtondia area, in Kilifi County.
They had accused the National Land Commission (NLC) and other government agencies of causing the subdivision and subsequent allocation of the property to third parties without following the due process of law on compulsory acquisition of private land.
The petitioners further alleged that the NLC did not give them audience before subdividing the land and giving it to third parties.
“It was up to the petitioners to precisely state how the respondents (NLC and the government) severally infringed their constitutional rights—we have a constitutional petition lacking precision,” said Justice Makori.
The judge said the petitioners did not provide evidence showing that NLC had received a request from the national or county government or a public body to acquire the property.
“As it stands, the discussion on compulsory acquisition of this specific land is far-fetched,” added the judge.
Justice Makori said it would have been prudent for the two petitioners to precisely state who allotted the third parties the land and the processes leading to the said allotment in order to apportion liability on any or all the respondents.
The two petitioners had described themselves as administrators of the estate of one Rashid Bin Salim, which they claimed was the duly registered owner of the property on Mazrui Reserve in Mtondia area, in Kilifi County.
They had accused the NLC and other government agencies of causing the subdivision and subsequent allocation of the property to third parties without following the due process of law on compulsory acquisition of private land.
Ministry of Lands headquarters at Ardhi House in Nairobi in mid March 2015.
Photo credit: File | Nation Media Group
The petitioners further alleged that the NLC did not give them an audience before subdividing the land and giving it to third parties.
The commission, through Mr Brian Ikol, the director of legal affairs and dispute resolution, opposed the case, arguing that the government had not submitted any interest in acquiring the property and there was no evidence of the alleged subdivision.
Nairobi Expressway land case
Separately, a firm’s quest for an additional Sh200 million compensation for a parcel of land compulsorily acquired for the construction of the Nairobi Expressway has been rejected by a tribunal.
The Land Acquisition tribunal rejected the appeal by Dembena International Ltd saying the matter had already been settled by the Environment court in May last year.
The tribunal, chaired by Dr Nabil Orina and George Supeyo (member), said the firm had also failed to provide sufficient proof to show that part of the land was not on a road reserve.
According to the firm, NLC acquired its parcel measuring 0.809 hectares in 2014.
However, in September 2021, the commission revised the award downwards to Sh804 million, noting the acreage had reduced to 0.6338 hectares, as the firm had encroached on a road reserve.
The firm was subsequently paid Sh300 million and it had to move to court to compel the NLC to release the balance. It obtained a judgment of Sh503 million against the commission.
Dembena International Ltd, however, moved to the tribunal seeking to have the amount enhanced to the earlier amount of Sh1 billion.
The commission opposed the case, arguing that the award was reviewed downwards after it was discovered that the company had encroached on an 88-metre road reserve and 30 30-metre buffer zone.
A portion of the suit property measuring 0.1708 hectares was determined to fall within the road reserve and buffer zone, the NLC told the tribunal.
The tribunal noted that in the judgment issued on May 30, 2024, the company sought to enforce the payment of the balance of Sh503 million.
“The judgment of the ELC of 30th May 2024 remains a final decision as the same was not appealed. We are therefore satisfied that the issue before us was determined in Nairobi ELC No. E005 of 2023 with finality,” the tribunal said.
