Ex-Minister Calist Mwatela awarded Sh25m in land dispute case with Mombasa County

The Environment and Land Court has ordered the county government of Mombasa to pay a former assistant minister and his wife Sh25 million after it breached a sale agreement of their 2.5-acre parcel of land which had been taken over by squatters.

Justice Lucas Naikuni further issued a declaration that by entering into an agreement, the county government blocked Mr Calist Mwatela and his wife Jacinta from pursuing their interest in the land from squatters with a promise to pay the money.

Further, the court issued a declaration that the county government breached the provisions of Section 30 of the Physical Planning Act by allowing squatters to carry on development on the land without its (Local Authority) permission.

Justice Naikuni directed that the money be paid together with interest at 12 per cent per annum with effect from March 1 2017 to the date of payment within 90 days from the judgment date.

He ruled that there was no doubt that there were all types of semi and permanent structures constructed on the 2.5 acres of the land located in Mishomoroni Mombasa belonging to Mr Mwatela and his wife Jacinta without the approval of the county government.

“I find that the plaintiffs (the Mwatelas) have proved their case against the county government of Mombasa,” ruled Justice Naikuni.

He further ruled that the county government invoked the doctrine of legitimate expectation through a duly executed sale agreement, terms and conditions, correspondences with the plaintiffs, and urging them to withdraw a civil case they had filed against the squatters.

The court added that the county government even caused the National Land Commission (NLC) to step in and create hope for the plaintiffs which led to the entering of the formal sale agreement for the land.

“Despite all this, the rising of legitimate expectations, the county government turned around and renegaded the same,” ruled Justice Naikuni.

The judge ruled that from surrounding facts, the court will not hesitate to conclude that the county government was in utter breach of the terms of the duly executed agreement for the sale of the land.

“I dare say that it has been adequately proved that there was a failure to make the payment of the outstanding balance, wrongful possession of the land, and failure to comply despite being issued with a demand letter,” said Justice Naikuni.

According to case documents, sometime in 2003, a few squatters without permission from the plaintiffs moved into the land and started constructing illegal temporary structures that did not have approved plans by the county government.

The plaintiffs, the court heard, reported the invasion of the land by squatters to the agents of the county government and demanded that it (the county government) intervene under its then by-laws and the provisions of Section 30 of the Physical Planning Act.

According to the plaintiffs, the defendant abdicated its statutory obligation by failing to enforce the Physical Planning Act to ensure that squatters did not enter into and remain on the land.

The court heard that while the plaintiffs were in the process of adjudicating a civil case in their bid to evict the squatters, the county government approached them with an offer to purchase the land and distribute it to the squatters.

The plaintiffs, the court heard, agreed and the process commenced and prior to entering into the contract, the value of the land was determined by both private and government valuers at Sh27 million and Sh25 million respectively.

According to suit documents, an agreement for sale was entered into between the plaintiffs and defendants on February 14 2017 for a consideration of Sh25 million. The county government was to pay the entire amount of money to the plaintiffs who were to forego their rights and interests over the land.

The plaintiffs told the court that as a result of the contract, they abandoned the civil case to have the squatters evicted as they waited for payment from the county government.

The court heard that as the number of squatters on the land swelled, massive construction was initiated and every inch of the land was occupied by a squatter.

The plaintiffs had told the court that despite the promises made by the county government which culminated in the drawing and excitation of the sale agreement, the county reneged on the agreement leading to the filing of the case.

The county government had denied that the plaintiffs were registered proprietors of the land.

It also denied that it was aware of the alleged occupation or construction by unspecified squatters on the land.

The devolved unit also denied ever participating in alleged negotiations and entering into an agreement for sale with the plaintiffs.

The court further ordered that upon being paid by the county government of Mombasa, the plaintiffs were to execute documents of transfer in favour of the county government or its nominees within 15 days.

[email protected]