Tussle over Sh2 billion Wasini Island headed to Parliament

Parliament has been cleared to continue hearing a petition in which a Coast legislator wants Wasini Island in Kwale County re-adjudicated.

The land that Lunga Lunga MP Khatib Mwashetani wants surveyed measures 289 acres and is valued at more than 2 billion.

The property is owned by the Saggaf family.

But a ruling by Mombasa Resident Judge John Mativo on May 31 has shocked the Saggaf family, who consider the legislator's move a scheme to disinherit them of the property.

The judge has dismissed a petition in which the Saggaf family had asked the court to stop the National Assembly from convening any meeting to discuss or interfere with the ownership of the property.

Dismissing the case, Justice Mativo noted that the family should have waited for the final decision of Parliament and if aggrieved, challenge it in court.

"I find no real and imminent threat [to] rights to warrant court intervention at this stage. No decision has been made. On this ground alone, this case is a non-starter and must fail. I dismiss it on this ground,” he said.

The judge noted that the petition was filed prematurely. 

The family had filed a response to Mr Mwashetani's petition but before it could be heard by the committee concerned, they moved to court to stop the process.

The parliamentary Committee on Land is required to hear all the parties and present its report to the full house. The report may or may not be adopted by the house.

At this point we cannot predict the outcome. It cannot be said there exists a justiciable controversy," said the judge.

The Saggaf family has argued that the court order that returned the ownership of the property to them did not relate to the entire land comprising 6,500 acres but only the 289 acres. 

Attorney-General Kariuki Kihara and National Assembly Speaker Justin Muturi, who had been sued in the case, had raised an objection to the court petition, which the judge upheld.

Mr Mohamed Maula, who filed the case on behalf of the family, described the legislator’s move as one that seeks to overturn a court judgment through Parliament.

“It is clear that Parliament is trying to interfere or overturn the judgment of the court,” he said.

The family says they have a valid judgment that handed them the property and that because no appeal was filed to challenge it, Parliament cannot be involved at this stage.

“Our constitutional right is under threat of being overturned by an illegal process by parliamentary interference, and this court has jurisdiction to stop [it],” said Mr Maula.

The family argues that Parliament has no authority to interfere with a court judgment.

The family expressed fears that they are likely to be permanently deprived of their private land as adjudged by the court in 1998 if Mr Mwashetani is allowed to proceed with the matter in Parliament.

“We plead with this court to issue an interim order accordingly,” said Mr Maula.

The petitioners are opposed to any attempt to re-adjudicate the property, noting that it had been surveyed and they are waiting for title deeds.

Mr Mwashetani has petitioned Parliament, seeking to have the property re-adjudicated and the ownership documents declared invalid by the High Court in 1998 reinstated.

The legislator wants Parliament, through the Land Committee, to intervene and protect Wasini Island from being grabbed or illegally taken from locals on account of the ongoing construction of Shimoni Port.

The MP says the family patriarch, Alawi Saggaf, only held the land in trust to secure it from being grabbed before the development of the Trust Land Policy.

“He did so pending its adjudication and distribution to each family as verbally agreed during title deed issuance,” Mr Mwashetani said.

Court records show that the Saggaf family reclaimed the property in 1998 through a judicial process that has not been challenged.

The dispute ended with an order directing the invalidation of the title documents issued then, with an additional order reverting ownership to the family.

The National Land Commission affirmed the decisions after conducting a public hearing in Mombasa.

It found that the family had suffered historical land injustice and directed that the property be surveyed and titles be issued to the family. The survey has been concluded.

However, in his petition to Parliament, Mr Mwashetani blames poverty among the affected locals for the failure to appeal against the judgment.

He claimed they could not afford to hire an advocate to appeal against the judgment that had declared all their title deeds null and void.

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