Five officials of a charitable institution in Tigoni of Kiambu County have been sentenced to six months in jail for disobeying a court directive stopping the construction of residential houses on disputed land.
The Registered Trustees of the Young Christian Men’s Christian Association (YMCA) and Kenya Young Men’s Christian Association led by Jared Musima were given the option of paying fines of Sh100,000 each, to escape the jail term.
The Environment and Land court ruled that the officials willfully disobeyed a court order issued in August last year, stopping further construction of the disputed land near Redhill area.
The officials had defended themselves arguing that the land had already been subdivided and the construction ongoing, when the court order was made. But the court said the continued construction was a clear act of defiance.
“The claim that they misunderstood the status quo to mean continuing building is a mala fide (bad faith) attempt to bypass a judicial directive. If they were in doubt, the proper course of action was to seek clarification from the court, not to proceed with the very act the petitioners were seeking to stop,” said the court.
The court said by continuing to build on a sensitive water catchment area and ignoring a penal notice, the directors of the association “struck the heart of the rule of law and the dignity of the court”.
The court further directed the police commander Tigoni station to ensure there is no further construction until the case is determined.
At the heart of the dispute is a claim that the project was being undertaken on public land reserved for a youth vocational college.
Irregular county approvals
Officials of Kentmere Residents Association, sued the non-governmental organizations on their own behalf and on behalf of the residents of Redhill Kentmere area.
The petitioners are opposing the project, on among other reasons that the land subdivision and resultant development would lead to overcrowding of the area.
The residents further stated that the land in a public-benefit asset held in trust for education and the subdivision into 51 plots is illegal land grab facilitated by irregular county approvals and lack of public participation.
The residents said the land was donated by well-wishers to be held in trust by the trustees specifically for education and charitable purposes, known as Limuru Boys Centre.
The trustees on their part argued that the land was private as YMCA is a private benefit organization entitled to liquidate its assets. Further, the Kiambu County government and National Environmental Management Authority had granted the required approvals.
The officials stated that they are the ones who will suffer serious financial and reputational risk if the project stalled. They said they will suffer damages of about Sh1 billion investment.
But according to the resident’s association, the construction would lead to environmental degradation, including reduced green spaces and pollution.
It is their case that the contested land parcels were acquired and set aside as trust land, with a view to establish a public- institution aimed at empowering students from poor backgrounds with necessary agricultural and technical skills.
“Limuru Boys Centre, which was later renamed YMCA Technical and Vocational Institute, was established on the aforementioned lands and has served the local and national community by providing education and training to pupils in need since its founding,” reads the petition.
Trust’s charitable mandate
The court stated in the ruling that the officials’ own incorporation documents limit land use to religious, educational or charitable purposes, creating a strong prima facie case of a restrictive trust.
The added that the contradiction between the trust’s charitable mandate and the commercial subdivision into 51 residential plots suggests a potential breach of fiduciary duty.
“Once the land is sold to third parties, and buildings erected, the character of the public trust is lost forever. Money cannot buy back a community’s educational heritage or a water catchment area,” said the court.
The judge said it was better to stop a project that might be illegal than to allow the completion of a project that might turn out to be illegal.
