Court orders recovery of Sh25m Mombasa road reserve from ex-councillor’s estate
Court found that the process required to lawfully close a public road was not followed as it ordered the recovery of a Sh25 million parcel of public land in Mombasa that was illegally allocated to a former politician in 1994.
What you need to know:
- Court found that the process required to lawfully close a public road was not followed.
- The parcel of land is currently being used as a parking lot.
The Environment and Land Court has ordered the recovery of a Sh25 million parcel of public land in Mombasa that was illegally allocated to a former politician in 1994.
The property, known as Machakos Street, was part of a public road reserve but was allocated to the late Ezekiel Luyali Liyai for the development of residential houses. It is currently being used as a parking lot.
The court found that the process required to lawfully close a public road under the Local Government Act, which was in force at the time, was not followed before the property was allocated.
“There was no evidence of any gazette notices being published of the intention to close the road. The Council did not even keep a proper record of any objections raised by the owners of the adjoining plots,” said the court.
The Ethics and Anti-Corruption Commission (EACC) told the court that the property was part of a road reserve under the defunct Municipal Council of Mombasa for public use.
The anti-graft agency submitted that the land was irregularly and unlawfully allocated to Mr Liyai in 1994 through the facilitation of David Kalume Randu and Ahmed Mwidhani, who were Town Clerk and Mayor of the council respectively.
EACC said the two officials abused their offices and breached their fiduciary duties by facilitating the allocation of the property to Mr Liyai in violation of the law.
Mr Mwidhani denied the allegations, arguing that although he was the Town Clerk at the time, he was not responsible for the allocation of plots.
He said the Municipal Engineer was the relevant technical officer mandated to advise the council on such matters.
Mr Mwidhani further argued that he only executed the lease documents in fulfilment of his statutory obligation under the repealed Local Government Act to give effect to decisions made by the council.
The court found that evidence presented during the hearing established that the property was part of a road reserve.
The head of survey records testified that the property was part of a road reserve and referred the court to the relevant survey plans.
A planner also testified that the disputed property formed part of a road reserve, pointing out that even the contested Part Development Plan (PDP) identified it as a road reserve.
“There was even no evidence that the purported allocation of the suit property was approved by a resolution of the Council or any of its committees. There was no evidence that the minister for local government had approved the said alienation for a term of 99 years with effect from 01.06.1994,” said the court.
The judge said the allocating authority had no legal power to allocate part of a public road for commercial and residential purposes under the law applicable at the time.
“The court is thus satisfied that the alienation of the suit property in 1994 was both illegal and fraudulent,” said the court.
The court ordered the Chief Land Registrar to rectify the land register by cancelling entries relating to the lease issued on September 1, 1994 and the subsequent registration of the property in favour of Mr Liyai.
It also issued a permanent injunction barring Mr Liyai's family, their agents or anyone acting on their behalf from selling, transferring or otherwise dealing with the property.
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