Justice Anne Omollo of the Environment and Land Court issued conservatory orders retraining Kenya Railways from giving the unsurveyed land in Bangladesh
Through lawyer Francis Mwakireti, Father Gabriel Dolan, who has sued KR and the transport company on behalf of the residents, argue the corporation denied them the right to acquire the land to secure their economic and social rights.
Residents of Mombasa's Bangladesh, Kwa Punda and Birikani informal settlements Thursday got a reprieve after a court barred Kenya Railways Corporation from giving a transport company land that they use.
Justice Anne Omollo of the Environment and Land Court issued conservatory orders retraining Kenya Railways from giving the unsurveyed land in Bangladesh to Sibed Transport Company Ltd pursuant to a purported lease agreement.
The judge also restrained the respondents from evicting the residents or interfering with the current use of the land pending the hearing and determination of the case.
The land is currently used as a children's playground and a collection point for water distributed to the residents.
Through lawyer Francis Mwakireti, Father Gabriel Dolan, who has sued KR and the transport company on behalf of the residents, argue the corporation denied them the right to acquire the land to secure their economic and social rights.
Mr Mwakireti argues in the application that the priest, on behalf of the residents of the informal settlements, made a request in 2009 to KR for allocation of the land for purposes of building a secondary school.
According to the petitioner, KR rejected the request through a letter on the grounds that the land had been sold.
“There has been interest and purported engagements between the county government of Mombasa and the Bangladesh community in respect of acquiring the land for purposes of establishing a high school for public interest purposes,” the application reads in part.
Already sold
Mr Mwakireti further argues that in October 2018, Father Dolan found out that KR had leased the land to the transport company despite its contention in 2009 that the land had already been sold.
The lawyer argues that KR has acted arbitrarily without following the procedure as set out in the constitution, KRC Act and the State Corporation Act by failing to allocate the land to the residents who had a legitimate public interest and had intended to build a school.
The petitioner says that on October 8, the chief of Birikani Sub-Location summoned some residents at the behest of the transport company to appear in her office on allegations of trespass on the land demanding that they vacate the land.
Fr Dolan says the transport company has started putting up a perimeter wall around the land and the residents shall be evicted from it and deprived of its use and suffer irreparable damage.
Fr Dolan, who is also an executive director of Haki Yetu organisation, in his affidavit says apart from being used as a playground, the land has been used as a place for the residents to hold public meetings and collection point for water donated to the residents.
Obtain consent
The petitioner wants a declaration that the allocation of the land by KR to the transport company and the purported lease agreement is unconstitutional, illegal, null and void from the beginning.
He also wants KR to be directed to obtain the consent of the minister responsible for lands to surrender the land for purposes of constructing a secondary school for the benefit of the residents of the slums.
The application is set for hearing on February 11.
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