In a land dispute that lasted almost 30 years, Kenya Breweries Ltd (KBL) has been granted a reprieve against the Mombasa County Government after a court declared the company's certificate of lease on the land is valid and still in force.
The Environment and Land Court also ruled that the re-planning and subdivision of KBL’s land in Tudor, conducted by the county government to create other parcels, was illegal, null and void.
Justice Stephen Kibunja, sitting in Mombasa, ordered the county government to pay KBL Sh1 million in exemplary and aggravated damages. The court also awarded KBL a further Sh911,800, the total amount of special damages pleaded and proven.
Justice Kibunja ruled that the county government's actions in re-planning the land amounted to arbitrary and oppressive deprivation of KBL’s proprietary rights over the land.
“Such acts by public bodies should not be encouraged as it adversely affected the plaintiff’s access and use of the developments it had erected on the land,” he ruled.
Although the motivation behind the county government's re-planning and subdivision was not obvious from the evidence presented, the judge noted that, however well-meaning it may have been, the result was that KBL was unlawfully and illegally denied its proprietary rights over the land.
KBL initiated legal proceedings in 1996, suing the then Municipal Council of Mombasa (now the county government), Abdulwahid Mohamed, Anne Jepngetich, Hawa Bashir, Lucy Mukhongo, Nancy Maina, Shahkaram Haji, James Kioko, the National Land Commission, the Mombasa Registrar of Land and Director of Survey.
The court was told that the claim against Mr Haji had been dropped.
The court ordered Ms Bashir, to whom Ms Jepngetich and Ms Mukhongo had transferred two plots, and Ms Maina, whose name a parcel of land is registered, to vacate and give KBL vacant possession of the land or any portion thereof within 90 days. If they fail to do so, an eviction order will be issued.
The court also issued a permanent injunction to restrain the county government, Mr Mohamed, Ms Jepngetich, Ms Bashir, Ms Mukhongo and Ms Maina from developing, transacting, intermeddling or in any way dealing with land belonging to KBL or any part of it, except for transferring it to the brewer.
KBL’s case
KBL told the court that it was the registered lessee of Mombasa/Block 1X/133 measuring 1.55 acres from the county government for a term of 99 years from April 1, 1948. The company told the court that it had erected four blocks, each comprising 12 flats, on part of the land, leaving a portion for future developments.
According to KBL, it had been paying rates, rents and other necessary fees due to the county government, but the devolved unit later declined to receive payments, alleging that the land did not exist in their records.
KBL accused the defendants of colluding and interfering with its land with an aim of keeping it out of its reach and unjustly enriching themselves. It said that as a result of the defendants’ actions, it had lost a substantial portion of its property.
County’s defence
The county government told the court that after KBL had been granted the lease on the land from April 1, 1948, it failed or neglected to register it, meaning that the land remained vested with the county government.
The devolved government argued that it had the legal capacity and authority to allocate the plots created to the other defendants and that the title document relied on by KBL was invalid as it was issued on December 28, 1992, after the re-planning and issuance of titles over the subdivisions in 1991.
Ms Jepngetich, Ms Bashir and Ms Mukhongo contested he allegations made against them by KBL.
Mr Kioko denied the fraud allegations of fraud and stated that he had no lease or possession of a parcel of land, adding that he had been wrongly included in the case.
The Mombasa Registrar of Lands and Director of Survey admitted that KBL owned the land, but denied carrying out any re-planning or subdivision of the land.
Justice Kibunja dismissed KBL’s case against Mr Kioko, NLC, Lands registrar and the Director of Survey.
