Githunguri wins first round in land compensation case

When he went to court over five-acres in Lang’ata compulsorily acquired for the Southern Bypass, former Kiambaa Member of Parliament Stanley Githunguri demanded the National Land Commission (NLC) pay him Sh652 million.

Though he failed to obtain the award last week, he went home with a ruling that will henceforth force the NLC to be giving a breakdown of how it arrives at compensation figures offered to owners of compulsorily acquired properties.

At the moment, NLC is engaged in a compensation row with Kibwezi West residents, who have sued through their MP Patrick Musimba.

The Kibwezi West land acquired by the NLC is intended to host part of the Sh366 billion standard gauge railway.

The MP has accused NLC of inaccurate valuations, arguing it led to inconsiderate compensation of landowners in his constituency.

In the Lang’ata by-pass case, Mr Githunguri, one of the Kenyatta-era tycoons and former executive chairman of National Bank of Kenya, had dismissed the Sh155 million offered insisting that the assistant commissioner of lands, Elias Rwigi, had failed to demonstrate how he had arrived at the figure.

The court agreed, but refused to give him the requested award, ordering NLC to give a “reasoned award on the basis of clearly ascertained criteria”.

The import of that ruling will mean that NLC’s ad hoc offers will come to an end. The judge wondered why NLC had not promulgated rules to streamline the procedure of assessing value of an interest in land and how it had delegated those powers to a commissioner of lands.

READ: Githunguri in fight with land commission over Sh652m pay

Mr Githunguri had raised concerns about the compensation talks being overseen by Mr Rwigi who is Kiambu Land boss. The former MP said the land is in Nairobi, hence Mr Rwigi usurped NLC’s powers in declaring the award.

“It is not clear under what delegated authority the assistant commissioner made the award,” said the judge.

Mr Rwigi had in his award dated December 20, 2013 stated that the total value of the land and the improvements on it was Sh135 million.

But on the basis of the papers laid in court, High Court Judge Mary Gitumbi said she was unable to establish whether the Sh155 million award was fair.

“On the face of it, the figure appears to have been plucked from the air,” she said. “The decision (to award Mr Githunguri Sh155 million) in the absence of reasons is arbitrary… the duty to give reasons is now constitutionally enshrined.”

Mr Githunguri had told the court that NLC had ignored several factors in arriving at the Sh155 million award, and that it had failed to support its claim on the amount offered to the businessman-cum-politician.

The former legislator attached as evidence of his claim a valuation done by Ragos Valuers and Estate Agents that he says NLC did not take into consideration.

Lady Justice Gitumbi held in her ruling that NLC’s failure to defend the suit made it difficult to determine whether the award it proposed to the former legislator was fair.

The judge said she had afforded the land commission several opportunities to file a response to the suit, but that NLC failed to comply. Its failure to account for the proposed Sh155 million was in contradiction with the national values of accountability and transparency, she said.

The former Kiambaa MP, who owns Nairobi’s Lilian Towers and Ridgeways Mall, holds that NLC did not consider the proximity of the land to the highway in reaching its award.

His five-acres, located in Karen Estate on Ngong Road, is a fraction of 20 acres that NLC had gazetted for compulsory acquisition in a bid to complete the project.

He further said that the land was intended for commercial use, and that he had already started the construction of a hospitality centre hence the Sh155 million award grossly undervalued his prime property.

Despite the ongoing suit, NLC acquired the land as the judge had not issued an injunction stopping it from possessing the land.

The 30-kilometre dual carriage Southern Bypass extends from Kikuyu to Mombasa Road via Ngong and Lang’ata Roads and is intended to divert heavy traffic flow from the Nakuru-Nairobi-Mombasa highway.

The road is expected to be opened in June this year. Its construction began in November 2011.

“It is the commission that is empowered to make the award. It is not clear under what delegated authority the assistant commissioner made the award. Is the commissioner’s decision to be referred to the commission?” she added.

The judge also faulted the NLC for failing to make rules to regulate the assessment of just compensation, which is one of the provisions of the Land Act.  

The Land Act also provides that an inquiry be conducted as regards any compensation to ensure the two values were followed to the letter.

Mr Githunguri had asked the land commission to offer him an alternative piece of land of the same size in the vicinity, but his request was turned down.