Audit fails to unmask developer in port land row

The Kenya Ports Authority (KPA) has failed to unmask the private developer who irregularly acquired part of the Mombasa port land and developed it against the directives of the National Land Commission (NLC), an audit found.

Auditor-General Edward Ouko says alteration of the land’s ownership occurred despite the KPA’s tariff book showing that all the tidal waters encircling the Mombasa Island is harbour area.

“However, a firm of private developers has reclaimed part of the waters encircling the island adjacent to the KPA offices and is developing it in breach of existing regulations,” Mr Ouko says.

The audit report says that the private developer ignored NLC instructions and went ahead to put up buildings on part of the reclaimed land adjacent to the KPA offices.

Mr Ouko says that the commission had in 2015 demanded immediate cessation of any developments on the land and its environs until a determination of the matter before it.

“This means the developer illegally excised part of the harbour area and has proceeded to develop the same against the National Land Commission directives,” Mr Ouko says in a qualified audit opinion on KPA books of accounts for the year to June 2017.

Change of use

The report says the KPA management did not provide any indication that the NLC had sanctioned reclamation of the land nor that the Cabinet Secretary responsible for Transport had permitted change of use for the harbour area as required by law.

Section 34 of the KPA Act requires the authority to protect the port harbour area against any encroachment.

The Transport minister and the NLC are the only entities with the authority to alter use of any part of the port area.

Acting NLC chairperson Abigail Mbagaya said she could not immediately identify the developer unless she went deep into the previous records.

“I wouldn’t know the owner right away because I am in Malindi. We can, however, get you the details as soon as I return to the office and peruse the files,” she said.

Sylvan Mghanga, the personal assistant to the acting KPA managing director Daniel Manduku, said there were multiple developments in the Kibarani area, making it difficult to know which developer is putting up what.

“As KPA, we are not the complainant. The Auditor-General or the NLC is in better position to provide this information,” he said.

Communicating with authority

Mr Ouko says that the KPA, through a letter dated September 20, 2010, had asked the developer why he was reclaiming the land without communicating with the authority.

The NLC followed up with a December 17, 2015 letter telling the developer that three land parcels had been reclaimed – an action the commission said amounted to allocation of public land that needed to be sanctioned by relevant authorities.

Ms Mbagaya said public land is vested in a State corporation or agency use for the good of Kenyans and cannot be converted to private use without the NLC’s involvement.

“You need to find out whether KPA has converted the land into private use, which is not allowed in law. They are allowed to use it in furtherance of their mandate but not convert it into private property,” she said.

Private road

Mr Ouko has also repeated a previous query regarding the KPA board’s decision to approve construction of a private road linking the reclaimed parcels of land to the port through a defined route on a parcel that was reclaimed through dumping of material from the port.

“The road is restricted for use by the developer only who has installed a weighbridge and an office. The authority indicated that the title for the reclaimed land was acquired by the developer on behalf of the authority at the developer's cost,” Mr Ouko said.

The reclaimed land forms part of the harbour area, which could only be amended through a gazette notice published by the minister responsible for transport and not the authority’s board or management.

Mr Ouko said the KPA management had failed to explain how the developer applied for and acquired title for the irregularly reclaimed land on behalf of the authority or who authorised it to initiate the transaction.

“The authority therefore violated Part IV Section 8(e) of the KPA Act that requires the board to ensure that no particular person or body is given any undue preference or is subjected to any undue disadvantage,” Mr Ouko said in a report dated April 27, 2018.