Two Mombasa-based tycoons have sued the Kenya National Highways Authority (Kenha) and a construction company following the demolishing of a section of a perimeter wall around their parcels of land in Mariakani.
The lands are next to the Nairobi-Mombasa highway which the government, through Kenha, is expanding.
In their petition to the Environment and Land Court, Messrs Doshi and Jaffer argue that the parcels of land are private and do not belong to the respondents or the government of Kenya.
“Kenha and China Communication Construction Company Ltd have no right to forcefully enter the properties, demolish the boundary wall and undertake construction works thereon,” part of the petition states.
Through Oluga & Company Advocates, the petitioners are seeking a declaration that they are legal and valid owners of the parcels of land and that the respondents have breached and violated their constitutional rights.
They also want an order issued to compel Kenha and the National Land Commission (NLC) to pay just and full compensation for the whole or portion of the parcels of land as they may require to undertake the expansion of the highway which should be paid within 60 days of the order.
The two businessmen say that on or about October 22, 2024, their security officers on the properties informed them that Kenha regional officers were on the land, took measurements and ordered the boundary wall demolished to pave the way for the road expansion.
Messrs Doshi and Jaffer say that through a law firm, they wrote a letter to Kenha and demanded that it ceases and desists from the intended demolition of the boundary wall.
“The first respondent retreated and did not take any steps until on or about January 10 when Kenha and China Communication Construction Company Ltd through their officers descended on the land and demolished the portion of the perimeter wall,” the petition states in part.
They further say that they engaged Kenha to have the boundary wall reconstructed and restored to its original position but all requests and efforts fell on deaf ears.
According to the petitioners, Kenha and China Communication Construction Company Ltd’s actions amount to the compulsory acquisition of their properties without paying compensation and following the laid down procedure in law.
They similarly argue that NLC is the institution with the constitutional and legal mandate on compulsory acquisitions of private land needed for public purposes and is under obligation to ensure that due process is followed before their properties are taken over by Kenha.
“There is no urgency to justify taking possession of the properties before compensation award is made and paid to the petitioners. Even in cases of emergency, the procedure outlined in the Land Act must be followed but the respondents did not,” part of the petition states.
The petitioners have accused NLC of failing in its constitutional and legal mandate by permitting Kenha and China Communication Construction Company Ltd to illegally take over their properties without following the legal procedure and paying them compensation.
Moreover, they want an order issued restraining the respondents or whoever is acting under their authority from accessing or in any manner interfering with their parcels of land before full and just compensation is paid to them.
The petitioners further want that in default to being paid compensation an order be issued compelling the respondents to reconstruct the perimeter wall and restore the properties to their previous state within 30 days.
In the meantime, they want pending hearing and determination of the petition, a conservatory order be issued restraining the respondent from undertaking any construction works or interfering with the parcels of land.
On its part, NLC through its valuation officer Samuel Maina said it had recommended that both titles claimed by the petitioners be cancelled.
In his affidavit, Mr Maina states that the wall which the petitioners claimed to have been damaged has already been demolished, rendering the request for conservatory orders moot as the alleged harm has already occurred.
“The conservatory orders are meant to prevent future harm, not remedy past occurrences and granting the orders sought would serve no useful purpose as events have already overtaken the issue,” Mr Maina further states.
