State to pay Gatabakis Sh300m for trespass in bypass project
Nancy Wanja Gatabaki. The government had been ordered to compensate her family for illegally taking a parcel of land where the Northern bypass was constructed.
The government has been ordered to compensate the family of the late Kiambu tycoon Samuel Gatabaki a total of Sh300 million for illegally taking a parcel of land where the Northern bypass was constructed.
Justice Oguttu Mboya said other than the failure to notify the Gatabakis of the intention to acquire the land, the government never compensated the family.
“Notwithstanding the foregoing, the 6th respondent (Kenya Urban Roads Authority- Kura) proceeded to and constructed the Northern Bypass on L.R No. 4508/1 in 2010. In this respect, there is no gainsaying that the construction of the Northern Bypass or the section thereof which traverses the land constitutes trespass to land,” said the judge.
Through Senior Counsel Paul Muite, the Gatabakis led by widow Nancy Wanja Gatabaki, Josephine Beatrice Gachoni, and Susan Esther Wangari, said they will head back to court for a clarification and seek compensation for the entire land where the road was constructed.
The judge said Kura’s move to construct the road without compulsorily acquiring the land and compensating the Gatabakis was not only barbaric but also constituted a serious affront to their fundamental rights.
The Environment and Land Court judge directed the National Land Commission (NLC) to commence the process of compulsory acquisition of land where the road is constructed, within 60 days from the date of the judgement.
“Owing to the fact that there was no compulsory acquisition of L.R No. 4508/1 and coupled with the finding that the construction of the road thereon, constitutes and amounts to trespass, it is common ground that the Petitioners’ rights were indeed violated and/or infringed upon,” said the judge.
The court said the government should pay the family Sh200 million for damages and another Sh100 million as exemplary damages for the offensive activities.
The family had sought compensation of Sh1.86 billion for the 16.38-acre parcel of land that was taken away for the construction of the road and disturbance allowance.
They argued that the land was not public and, therefore, not available for allocation.
Mrs Gatabaki testified that they purchased the land in 1970 and was acquired by the government without following the law as she and her late husband were never notified of the intended acquisition.
She added that the dispute over the land started in 1978 when she and her husband sold 60 acres to Gitere Kahura Investments for Sh2.4 million.
However, the buyer failed to complete the payment, having only paid Sh2.2 million, thus having a balance of Sh200,000 which was equivalent to five acres. She said she hired a private investigator who probed the circumstances leading to the subdivision of her larger portion of land and discovered that it was done at the instigation of a surveyor.
According to the widow, the failure to clear the balance sparked a dispute over the inclusion of public utilities.
The government opposed the case arguing that the Northern Bypass was constructed in 2010 and the land on which the road was constructed had been surrendered to the government.
In a partial win for the government, the court said a portion – 18.1 acres was public land, and the access road in the area was public land as it was surrendered for public utilities.
The judge said the NLC should undertake the valuation and generate the award.
“Other than the foregoing, it is also worth recalling that computation of the award for purposes of compulsory acquisition is the preserve of the National Land Commission,” said the judge.
