Taxpayers to lose Sh464m in irregular private land acquisition


The Supreme Court of Kenya. PHOTO | DENNIS ONSONGO | NMG

Taxpayers have been slapped with a Sh464 million bill over government's irregular acquisition of a private land in Kilifi to settle squatters in order to sway the public vote in favour of the government in the 2007 General Elections.

The Supreme Court has awarded the owner of the property, Zinj Limited, a sum of Sh464,973,248 for the irregular acquisition of its 126-acre land and issuance of duplicate title deeds to third parties.

"Government’s action of issuing titles over a portion of the Zinj’s land, amounted to a violation of its right to property. Such action could not be regarded as “a compulsory acquisition” as it was done contrary to the Constitution and the law," said the Supreme Court bench led by Chief Justice Martha Koome.

The Apex judges endorsed the compensation awarded by the High Court as they set aside the decision of the Court of Appeal to increase the quantum of damages from Sh464 million to Sh492 million.

The company was the owner of the suit property, which measured 1051 acres, and was registered in his favour on April 1, 1977, via a grant issued under the repealed Registration of Titles Act (RTA).

Being in occupation of the suit property, the company proceeded to carry out prawn farming, salt extraction, amongst other marine aquaculture activities.

In 2007 the government issued duplicate titles over portions of the suit property to third parties (trespassers) with the sole motive of swaying the public to vote in favour of the government in the then looming 2007 General Elections.

The duplicate title deeds were issued at the behest of the politicians in the area, with a view to winning votes in favour of the respective candidates.

Among other groups of people, the Department of Defence through the then Treasury PS was granted a duplicate title over a portion of the land, L.R. No. 24853, which was part of the suit property.

The court further heard that the government's conduct encouraged further invasion of the suit property by squatters who hoped that they too would be issued with titles.

As a result, the company suffered loss because the human settlement on the suit property interfered with the special use of the same for aquaculture.

In its judgment, the Supreme court also held that the portion of the suit property, over which no titles were issued by the Government, in favour of third parties, shall remain vested in the company, in accordance with the Grant it holds in its favour.

"There is nothing on the record to show, that any of the mandatory processes (on compulsory acquisition), was followed before a portion of the suit property was acquired," ruled the bench.

"This being the case and despite the Attorney General’s protestations to the contrary, we must reach the conclusion, in agreement with the Trial Court, that the issuance of titles over a portion of the suit property, in favour of third parties was unlawful, un-procedural, and an egregious violation of the respondent’s right to property," said the Supreme Court.

The other judges on the bench include Deputy Chief Justice Philomena Mwilu and justices Mohammed Ibrahim, Smokin Wanjala and William Ouko.

They said the acquisition was “compulsory” only because the Government used its coercive powers to deprive Zinj of its property in disregard of the Constitution.

The illegal acquisition of parts of the land was not a one-off event. Rather, it took place in phases and at different times.

The judges said being the custodian of the Land Register, and the guarantor of titles emanating there-from, the Government was acutely aware that the suit property was privately owned by the company.

In opposition, the government through Mr Paul Kiiru Mwangi, the then Deputy Director of Adjudication, stated that the portions in question were allocated to squatters under the Ngomeni Settlement Scheme which was established in the year 1994.

Mr Mwangi said prior to the identification of the squatters and allocation of the portions, the Commissioner of lands by a notice of January 24, 2011, called on all persons who held title or laid claim to the said portions to prove their entitlement.

Thereafter, the process of allocation of portions under the Settlement Scheme proceeded without any complaint or objection.

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