The Kenya National Highways Authority (KeNHA) and the National Land Commission (NLC) have been ordered to compensate two Mombasa-based businessmen for whole or portions of their land as required for the expansion of the Mombasa-Nairobi highway.
The Environment and Land Court (ELC) in Malindi directed KeNHA and NLC to pay industrialist Ashok Doshi and trader Mohamed Jaffer full compensation for the whole or portions of land situated in Mariakani, Kilifi County, within 60 days.
It also issued a declaration that the petitioners are the lawful and valid owners of the land they are to be compensated on (LR No. 17439), but declined to issue a definitive declaration of ownership on another parcel of land (LR No. 16142).
Doshi and Jaffer sued the KeNHA and China Communication Construction Company Ltd, accusing them of demolishing a portion of a perimeter wall around their parcels of land in Mariakani next to the Nairobi-Mombasa highway.
The ELC noted that it was undisputed that the KeNHA and the construction company entered the parcels of land, demolished the perimeter wall, and started construction without initiating the mandatory acquisition process under the Land Act.
“There was no notice of intent to acquire, no inquiry, no participation by the petitioners, no valuation, no award, and no compensation, at the very least, no such evidence was presented before this court,” ruled the ELC in its November 26 decision.
NLC said that in carrying out its mandate, it conducted a review of grants and dispositions in Kilifi, Mombasa, and Kwale counties and arrived at a determination and published its recommendations in a Gazette Notice.
NLC told the court that petitioners were aware of the cancellation of their titles concerning the parcels of land and that the orders sought were moot.
Doshi and Jaffer had argued that the parcels of land were private and did not belong to the respondents or the government of Kenya.
“KeNHA and China Communication Construction Company Ltd have no right to forcefully enter the properties, demolish the boundary wall and undertake construction works thereon,” part of the petition stated.
The petitioners were seeking a declaration that they are legal and valid owners of the parcels of land and that the respondents breached and violated their Constitutional rights.
They also wanted an order issued to compel KeNHA and NLC to pay just and full compensation for the whole or portion of the parcels of land as they may require to undertake the expansion of the highway, which should be paid within 60 days of the order.
The two businessmen claimed that on or about October 22 last year, their security officers on the properties informed them that officers of KeNHA regional offices were on land, took measurements, and ordered the boundary wall demolished to pave the way for the road expansion.
Messrs Doshi and Jaffer said that through a law firm, they wrote a letter to KeNHA and demanded that it cease from the intended demolition of the boundary wall.
“The first respondent retreated and did not take any steps until on or about January 10, when KeNHA and China Communication Construction Company Ltd, through their officers, descended on the land and demolished the portion of the perimeter wall,” the petition stated in part.
They further said that they engaged KeNHA to have the boundary wall reconstructed and restored to its original position, but all requests and efforts fell on deaf ears.
According to the petitioners, Kenha and China Communication Construction Company Ltd’s actions amounted to compulsory acquisition of their properties without paying compensation and following the laid down procedure in law.
