A legal battle pitting Deputy President William Ruto against the Kenya Civil Aviation Authority (KCAA) on ownership of the land where his Weston Hotel stands has moved to the Court of Appeal.
Dr Ruto is aggrieved by the ruling of Justice Benard Eboso that the Environment and Lands Court has powers to hear the dispute, which emanated from the National Land Commission (NLC).
In the ruling dated March 3, 2021, Justice Eboso told the hotel that "Section 13 of the Environment and Land Court Act grants this court both original and appellate jurisdiction to hear and determine disputes relating to the environment and the use and occupation of and title to land".
Feeling dissatisfied, the hotel wants the Court of Appeal to set aside the ruling in its entirety.
In the memorandum of appeal, the hotel says the judge erred by finding that it was proper for KCAA to approach court with a fresh case on recovery of the suit land against the decision made by NLC.
According to Weston, the agency should have filed the case in form of an appeal.
It said the petition filed by KCAA challenging decision of NLC was an abuse of the court process, since the law expressly prescribes a statutory procedure for pursuit by persons aggrieved with determinations issued by the NLC, being an appeal to the Environment and Land Court.
The hotel states that the judge erred in ruling that the report of NLC was not subject to the appeal mechanism stipulated under Regulations of the Commission (Review of the Grants and Disposition of Public Land) Regulations, 2017.
"The judge erred in law and fact when he sat on the appeal against decision made by NLC. He made a finding that the appeal process provided by Regulation 30 of NLC Regulations is optional and not mandatory," says the hotel in the three-page memorandum.
It further says the judge failed to address the pertinent question before court for adjudication and judicial determination and instead 'digressed' and made a finding on the merit of a different matter.
Through Ahmednassir, Abdikadir & Company Advocates, the hotel says the judge instead ruled on whether the decision of NLC dated January 21, 2019 was an adjudication.
In the said decision, NLC had ordered that Weston should pay for the land.
"His determination that the finding and recommendation of NLC was not an adjudication under Section 14 of the NLC Act but was a finding under section 6 of the Act, was not before him for adjudication and determination," reads the memorandum of appeal.
In a further attack to the ruling, the hotel indicates that Judge Eboso failed to a determination on the issues raised in an application dated June 16, 2020 which is still unheard.
The said pending application was filed by Weston seeking dismissal of the petition by KCAA on grounds that the case offends the doctrine of exhaustion of remedies.
Grave constitutional breach
"The determination by the judge of the issues that were not before him caused grave constitutional breach on the right of Weston Ltd to fair hearing and trial. The judge in his ruling became an important party to the dispute and a partisan one in that regard when he failed to rule on what was before him but elected nonetheless to dismiss the application of June 16, 2020 on issues not before him," reads the appeal.
In the petition lodged in court on June 13, 2019, KCAA contends that the NLC had violated its constitutional and statutory rights and the right to natural justice because it purported to adjudicate the dispute long after its constitutional mandate to review grants and dispositions relating to public land had lapsed.
KCAA says the commission had no powers to order Weston compesate KCAA compensate because its powers were limited to making a determination on whether the grant was acquired lawfully, regularly or unlawfully, or to order revocation of title.
Thus, it says the Commission had acted ultra vires by ordering that it would determine the current market value of the suit property and thereby arrogating to itself powers contrary to the Constitution and statute.
Further that he Commission had acted illegally in issuing the disputed determination because it was signed for the Chairman by the Vice Chairman Abigael Mbagaya Mukolwe, despite there being no vacancy in the Office of the Chairperson.
"The determination was signed by only one member of the Commission; the Commission had purported to grant a relief which was not sought; and the Commission had acted unlawfully by ordering that compensation be paid to the KCAA for public land," says KCAA.
As against Weston, the agency contends that the hotel violated its rights by irregularly acquiring its land and fraudulently registering an undervalued transfer and engaging in illegal conduct after registration of the transfer.
