The government has been ordered to demolish the Pangani footbridge on the Thika Superhighway within 90 days for encroaching on private property without compensating the owner.
The Land Acquisition Tribunal ruled that part of the footbridge was erected on land not acquired by the Kenya National Highways Authority (KeNHA) for the Thika Road project and therefore encroached on property belonging to the Sheikh Fazal Ilani Noordin Charitable Trust.
The tribunal noted that the footbridge blocked access to the property and the appropriate relief was to order its removal.
“Even though we have found that the footbridge on the suit property was illegally constructed and has deprived the claimants of a portion of their property, we are persuaded that an order of compensation for the portion illegally occupied would not be appropriate in the circumstances,” said tribunal chair Dr Nabil Orina.
A city pedestrian walks down the staircase of the Pangani Footbridge located near the Muthaiga Underpass and Jubilee Party Headquarters past a wall painting encouraging city residents to use the footbridge to avoid being hit by oncoming vehicles crossing the busy Thika Road Superhighway on November 5, 2020.
Photo credit: File| Nation Media Group
The tribunal further directed the government to compensate the trust Sh500 million for land that was compulsorily acquired for the construction of the road. The government had initially proposed Sh53.5 million, but the amount was never paid.
In addition, KeNHA was ordered to pay Sh75 million as disturbance allowance, Sh300 million in general damages for trespass, plus Sh5 million in aggravated damages.
The tribunal said evidence showed that the footbridge encroached on the property and fell outside the portion legally acquired for the project. KeNHA was also directed to remove soil and construction waste dumped on the land within three months and to file a compliance report within 100 days.
Adding to taxpayers’ burden, the tribunal ordered KeNHA to pay the trust Sh15 million annually for trespass since 2009.
“We also determine that the claimants are entitled to Sh50 million for the encroachment of their property through the building of a footbridge, which blocked the property’s entry and exit,” ruled Dr Orina, George Supeyo and Ruth Okal.
The tribunal stressed that the portion of land on which the footbridge stands was never part of the compulsory acquisition for the Thika Road project. It also noted that the trustees made several unsuccessful attempts to seek clarification from KeNHA.
“It follows, therefore, that any deprivation not carried out through compulsory acquisition under the law is a violation of the affected party’s fundamental rights. The compulsory acquisition process, as well as the erection of the footbridge on the claimants’ property, did not comply with the Constitution or the repealed Act,” the tribunal added.
The trustees also submitted that during the acquisition of land for the road in 2008, they were not involved in the process, thereby being deprived of their rights.
The acquisition began in July 2008, when the Commissioner of Lands published Gazette Notices for compulsory acquisition of various parcels for the Nairobi–Thika Road Project.
In a letter on December 22, 2008, the Ministry of Lands forwarded a compensation schedule to the Ministry of Roads indicating an award of Sh53.5 million.
However, in February 2009, another Gazette Notice revised the acreage of the property to be acquired.
For the past 17 years, the trustees have pursued compensation, arguing that they were never served with the requisite notices—a failure that constitutes material non-compliance with the law and renders the process a nullity.
They described the valuation as hasty, unprocedural and inadequate and noted that they have never been paid.
In response, the National Land Commission (NLC) admitted that the compulsory acquisition process was flawed and ought to be redone to avoid irregular compensation.
The tribunal also directed NLC to audit all acquisition processes initiated by its predecessor to ensure they are completed in line with the Constitution.
