A section of Jamia Mosque in Nairobi.
The trustees of Jamia Mosque have sued the government for Sh3.926 billion in compensation for the acquisition of the religious institution’s 5.14-acre land around Nairobi’s Globe Cinema roundabout.
The trustees want the court to either order financial compensation or revert ownership of the land, which hosts a matatu terminus, to Jamia Mosque.
In a case filed under a certificate of urgency at the Environment and Land Court, the trustees argue that there has been a one-and-a-half-year delay in compensating Jamia Mosque for the prime land.
They now want the Gazette Notices which communicated the acquisition quashed and the land given back, or for a Sh3.926 billion compensation package to be paid upon order by the court.
However, the National Lands Commission (NLC) has opposed the Sh3.926 billion compensation claim by the Registered Trustees of Jamia Masjid Ahle Sunait Wal Jamait (Jamia Mosque), arguing that the government has yet to take possession of the disputed land.
NLC lawyer Titus Koceyo stated that the government had only expressed an intention to acquire the land via Gazette Notices but had not yet moved into the property to develop it as intended.
"The trustees remain the bona fide registered owners and are still in possession of the land," said Mr Koceyo.
“NLC and the Nairobi City County Government have not dispossessed or interfered with the quiet possession of the land by the claimant trustees,” he added in defence of NLC.
In an affidavit sworn by NLC’s senior valuer, Austin Odhiambo Ogutu Otewa, the court has been asked to dismiss the Sh3.926 billion claim since the acquisition has yet to be effected.
Mr Otewa further disputes the multi-billion-shillings claim, stating, “The valuation was neither carried out by NLC experts nor was there an award made to that effect by the land agency.”
Mr Koceyo added: “It is only after acquiring the land from the registered owner that the issue of compensation can arise.”
“This suit seeks to force NLC and the Nairobi City County Government to circumvent the due process of the law and pay the claimant (Jamia Mosque trustees) money that is not due to them and which has not crystallised.”
He maintains that the claimants’ property has not been compulsorily acquired to justify the payment.
In the evidence filed in court, the trustees state that they are the registered owners of the parcel of land that the government compulsorily acquired through three Gazette Notices.
Since 2009, when the mosque acquired the property, it has been in quiet possession. The trustees further state that they have dutifully paid rent and rates to the Nairobi City County Government whenever due.
On June 25, 2021, NLC notified the trustees of the government’s urgent need to compulsorily acquire the 2.083 hectares for the construction of a matatu terminus in the Ngara area under the Nairobi Metropolitan Services (NMS).
However, NMS's tenure ended on September 30, 2022, before the project commenced.
Both NLC and the county government then went silent on the issue, compelling the trustees to follow up on their compensation, albeit in vain.
NLC claims that the Nairobi City County Government has not remitted the money needed for the land acquisition.
“NLC and NCC have jointly denied the trustees fair administrative action, as guaranteed under Article 47 of the Constitution of Kenya and enacted in the Fair Administrative Actions Act,” states Ali & Company Advocates, the law firm representing the trustees.
The trustees, who have named the county and NLC as the respondents in the case, argue that they have been illegally and unjustifiably required to follow up on internal government matters in pursuit of their compensation.
The trustees are now urging the court to declare that the compulsory acquisition of their land (LR No.209/136/259, New No. Title No. Nairobi/Block 10/166) without adhering to the strict and mandatory provisions of the Land Act, 2012, violates their constitutional rights.
They argue that their rights to not be arbitrarily deprived of property by the state, as guaranteed under Article 40 (3) (a) and (b) of the Constitution of Kenya 2010, have been infringed.
The trustees ask the court to compel NLC to pay them Sh3,926,568,896 for the violation of their rights.
Alternatively, they are urging the court to quash Gazette Notices Numbers 5402 and 10279 of 2021, 207 and 15995 of 2022, and 641 of 19/1/2023, which vested the land in the Nairobi City County Government.
They claim their property rights have been blatantly violated.
“In the alternative, an order of judicial review should be issued to quash Gazette Notices Nos. 5402 and 10279 of 2021, 207 and 15995 of 2022, and 641 of 19/1/2023 due to the continued infringement of the trustees' property rights, pursuant to Article 23(3)(f) of the Constitution of Kenya,” state the court papers.
The court has directed all parties to file written submissions before March 24, 2025, when the case will be heard.
rmunguti@ke.nationmedia.com
