The Kenya Airports Authority (KAA) has accused businessman Joshua Kulei of illegally fencing off part of Moi International Airport (MIA) in Moi International Airport even before a court case on the ownership of the land was determined.
Mr Kulei, a former aide to retired President Daniel arap Moi, was charged in January 2010 jointly with former Commissioner for Lands Wilson Gachanja, former Kenya Pipeline Managing Director Ezekiel Komen, former KAA director Peter Kipyegon Lagat and businessman Prakash Bhundia with conspiring to defraud MIA of 12 parcels of land.
Eleven of the 12 plots under investigation are owned by Mr Kulei through a company called East Africa Gas Company (EAGC). The pieces, all measuring 2.24 hectares (equivalent to 5.5 acres), have since been amalgamated under one title deed, L.R No Mn/ VI/4114.
But in a complaint to the Ethics and Anti-Corruption Commission (EACC) last year, KAA claims that even as the cases over the ownership progressed, Mr Kulei went ahead and placed beacons inside the airport with the intention of fencing it off.
“Joshua Chelelgo Kulei has since, under the auspices of the District Land Surveyor’s office and facilitation by the airport management, recently placed several beacons at MIA,” reads a letter dated March 16, 2017 from KAA Managing Director Jonny Andersen to EACC Chief Executive Officer Halakhe Waqo.
Mr Andersen further stated: “The beacons have been placed around the former Port Reitz Airport area and inside the security fence around runway 33 of the secondary runway.
Consequently he has KAA notice to relocate its security fence as it was inside the said beacons. In the view of the above, kindly but urgently apprise us on the status of the subject suit for our further action.”
In its reply dated October 9, 2017, EAGC, through lawyer Mark Macharia Ng’aru of Macharia Ng’aru and Wetang’ula Advocates, accused KAA of maliciously claiming that Mr Kulei had not only “trespassed a high security installation, but also attempted to grab the land belonging to the Authority.”
EAGC said that KAA failed to stake its claim to the land when the National Land Commission (NLC) was reviewing the titles and grants of public land within Mombasa County in 2015 to establish their legality or otherwise.
“Not surprisingly, and despite a public invitation by way of a Notice that was published prominently in the Kenya Gazette, the Daily Nation and the East African Standard, you failed, refused and or/ignored to make any submissions to the NLC to support any claim you might have had to the subject land,” said lawyer Nga’ru. The NLC then issued EAGC the title to the land in December 2015. The decision by the NLC, contained in a Gazette notice dated July 17, 2017, means that the land is now owned rightfully by the EAGC, which can move onto it anytime.
The land is alleged to have been irregularly excised from the original KAA land and transferred to EAGC on October 2, 1996. The Commission upheld titles in favour of the company despite written objections to it by the Director of Public Prosecutions (DPP) through a letter dated November 27, 2017. The NLC refused to have the titles revoked pursuant to the DPP’s request on the grounds that EAGC acquired the parcels lawfully and thus were deemed a bona fide purchaser for value without notice of defect in title.
The resolution made by the NLC without the KAA being heard resulted in dismissal of major charges by the Judiciary against the suspects last month.
“It is clear to my mind that the decision of NLC having rendered the factual basis or substratum of the said charges wholly untenable, the only recourse available to the Court is to invoke Section 89(5) CPC in the spirit of the decision I cited herein, strike out the said charges and discharge accused persons affected thereby,” the trial magistrate ruled.
Nonetheless, EAGC maintains that the land in contention is not within the airport’s boundary. The company said in November 2016 it took upon itself the task of ascertaining the lawful boundary between its land and that of KAA at the Survey of Kenya offices in Nairobi and the offices of the Mombasa District Surveyor.
It claimed that KAA officers ignored invitations to attend the exercise and after which “the Mombasa District Surveyor after numerous visits to the subject land, investigated our complaint, unearthed and fixed the beacons along the lawful boundary and issued all parties with a Surveyor’s Ground Report dated January 23, 2017 wherein it was confirmed that you had encroached upon our client’s land”.
Last July the NLC approved Sh843 million in compensation to East African Gas Company after some of the parcels in contention were acquired for the construction of the standard gauge railway.
Now the company wants the airport to remove key installations – including a fence and a watchtower – actions that could not only affect the security of the airport but also flights.
Furthermore, “In the circumstances, our instructions are therefore to demand… You proceed to write to AMISOM and the Kenya Airforce and/or the Department of Defence advising them that you granted them interests over our client’s land, which interests you were incapable of granting,” said Mr Nga’ru’s letter.
