Kenya Railways Staff Retirement Benefits Scheme manager Simon Nyakundi and the company’s corporate trustees have been fined Sh200,000 each after they were found in contempt of a court order that stopped all activity on a disputed piece of land in Nairobi’s Upper Hill.
High Court judge Bernard Eboso had cited the duo for contempt after they signed a lease contract with the developer of the prime plot despite a court order stopping the same.
Three parties, the railways staff scheme, trustees of Sheikh Zayed Bin Sultan al Nahyan and Pelican, have laid claim to the plot and are fighting for its possession in a legal dispute that began in 2015 but has not been heard to date.
The retirement scheme leased out the land to Jabavu Village Limited, the company that is constructing Africa’s tallest building in Nairobi’s Upper Hill in March 2017 — prompting Sheikh Zayed trustees to institute contempt of court proceedings against them.
Sheikh Zayed had in 2015 sued Pelican, the National Land Commission (NLC) and the Nairobi county government claiming it was the rightful owner of the prime plot it was given as a gift by former President Daniel arap Moi.
The High Court upon hearing Sheikh Zayed’s suit filed under a certificate of urgency issued an order restraining the parties from dealing in the suit property.
Kenya Railways Staff Retirement Benefits Scheme was not a party to the initial suit.
Sheikh Zayed trustees went to court against the four respondents while it was in the middle of a battle for ownership of the plot with the railways staff scheme before the NLC tribunal — a battle it lost after the commission in February 2017 found that the Kenya Railways Staff Retirement Benefits Scheme is the rightful owner of the plot and asked the chief land registrar to revoke Sheikh Zayed’s title.
The NLC’s determination made on February 15, 2017, declared that “L.R 11552, registered to the Trustees of Sheikh Zayed Bin Sultan Al-Nahyan is illegal … and reverts to Kenya Railways Staff Retirements and Benefits Scheme.”
The NLC had in its ruling said that the land, which has since been leased to developers of the Pinnacle Tower, was already legally owned by the railway staff scheme at the time Trustees of Sheikh Zayed claim Mr Moi gave them the plot as a gift.
“The property was vested to the Kenya Railways Staff Retirement Benefits Scheme at the time it was allegedly being allocated to registered Trustees of Sheikh Zayed Bin Sultan Al-Nahyan,” the NLC said.
Sheikh Zayed Trustees have yet to challenge the NLC’s finding in court.
Kenya Railways retirement scheme have argued in court papers that the NLC’s finding that it was the rightful owner of the land, coupled with the fact that they were not a party to the 2015 suit is the reason they leased the disputed property to Jabavu.
Court documents show the initial suit filed in 2015 involved the Trustees of Sheikh Zayed, Kenya Railways and a firm identified as Pelican over the same piece of the land.
Trustees of Sheikh Zayed claim former president Moi gave the land to the President of the United Arab Emirates (UAE) in 1990 as a gift and that it was registered in the recipient’s name in 1992.
But the commission found that Mr Moi lacked the power to allocate the land to another party since it was already owned by the Railway Staff Scheme.
The NLC made the ruling after the Railways staff scheme complained that the property L.R No 6525 had been subdivided without their consent and taken by a person not known to them.
The land measuring 6.88 acres was initially owned by East African Railways and Harbours and was allocated to Kenya Railway in 1965 — which ultimately gave the property to the Kenya Railways Staff Retirement Benefits Scheme as settlement for pension arrears.
The retirement scheme argues that it was on the basis of the NLC finding that it went ahead and leased the plot to Jabavu Village Limited — the developers of the Pinnacle Towers, the 45-floor Hilton Upper Hill hotel and 70-storey apartments and office block.
The court papers show that the fight for ownership was initially between Trustees of Sheikh Zayed and a firm called Pelican. But in an interesting turn of events, the two firms have now joined hands to fight the developer, changing the direction of the dispute.
What is even more puzzling is the fact that the main suit, which was filed in 2015, is still pending even as the court continues to deal with numerous interim applications.
Justice Eboso on February 16 declared illegal the lease contract that the developer signed with the trustees of Kenya Railways Staff Retirement Benefits Scheme, arguing that the orders preserving the land had been brought to the attention of the railways staff scheme even though it was not a party to the subject suit.
The judge let the developers off the hook with regard to contempt of court, but found the Kenya Railways Staff Retirement Benefits Scheme trustees and its chief executive officer guilty of disobeying its orders.
He said the retirement scheme did not deny knowledge of the existing court orders but defended themselves on the grounds that it did not bind them since they were not a party to the suit.
The scheme has issued a notice of appeal against Justice Eboso’s decision.