Sh11bn court ruling piles more misery on city slum residents

Mohammed Mukhtar has lived in Mukuru kwa Njenga slum in Nairobi for the last 20 years. He says he moved there from North Eastern Province in search of a better life in the city.

Mukuru seemed the ideal place for a man with little money and few job prospects.

Two decades and 10 children later, Mr Mukhtar has become a community elder in a place where he had hoped to live no more than five years.

Now he worries about the lack of sanitation in the slum and the fact that his children cannot access good schools. But his biggest headache is that he does not own the land on which he lives.

The fate of Mr Mukhtar and more than 100,000 other residents of Mukuru slum residents is clouded in deeper uncertainty.

Last week, Orbit Chemical company was awarded Sh11 billion by the High Court following a protracted legal battle with the government over the 92.2-acres in Embakasi. The company has subsequently given indications that it plans to put the land to use.

Orbit acquired the property from the government in 1987. That same year, the commissioner of lands issued a caveat against the land claiming government interest. This halted Orbit’s bid to commercially develop the property.

In court documents, Orbit argues that it was unable to have the caveat deregistered because the file relating to the issue had been “missing at the land registry office over a long period of time”.

During intervening years, squatters moved onto the property.

Data collected by an umbrella lobby group for slum-dwellers, Muungano wa Wanavijiji, estimates the number of people living on the land as between 120,000 and 160,000.

In 2004, Orbit moved to court seeking compensation for lost revenue and investment opportunities. An initial Sh6.4 billion settlement was agreed upon in 2008.

But the government rejected the deal citing questioning the credibility of the economist who had helped negotiate it.

The case found its way back to court in 2008. In a ruling written by Justice Roselyne Nambuye, but delivered on her behalf by Justice David Majanja on Friday last week, the court awarded Orbit Sh6 billion plus interest bringing the total amount to Sh11.4 billion.

The Attorney-General intends to appeal, according to a statement on Tuesday last week.

Orbit has already indicated it plans to have people moved out of the land in Embakasi.

“Meanwhile Orbit, being the owners hence entitled to deal with the land as they wish, including offering it to willing buyers,” said Orbit’s lawyer, Mr Mathew Oseko, in a letter sent to the Sunday Nation.

Mr Oseko argued that Orbit has the right to utilise the land unimpeded, citing a 2006 judgment made by Justice J.B Ojwang. In the case that had pitted some residents of Mukuru against the firm, the court ruled that the squatters had no right to occupy the property.

“The squatters continue to occupy the land illegally and are due for eviction anytime,” said Mr Oseko.

About 25 per cent of the land in Mukuru is occupied by business people who have put up multistorey rental buildings and may have the financial muscle to buy the property off Orbit.

The rest is occupied by more than 100,000 residents whose ability to raise the funds to by buy the land is in doubt.

However, some of them are hopeful that with a bit of solidarity, they may be able to purchase the land that they have come to call home.

“If the price is reasonable, we can come together and contribute some money to buy this land. Many of us are willing and are already part of a savings scheme that allows us to contribute a little money every day to buy our houses from the landlords,” says Mr Joseph Muendo, who moved to Mukuru from Kibera in 2008 following the post-election violence.

The landlords he refers to are slumlord cartels who grabbed the land left unoccupied by the original title holders and built semi-permanent residences to rent to low-income residents.

Ninety-two per cent of residents in these settlements are tenants at the mercy of the slumlords.

While Mr Muendo may be willing to spend his hard-earned money on buying the land, most slum dwellers have not taken pronouncements of eviction lying down.

Through the Muungano wa Wanavijiji lobby group, they have moved to court demanding ownership of the titles in the slums.

In the case filed in mid-September against nine title holders in the Mukuru region, Justice George Odunga issued an interlocutory order restraining the eviction of the Mukuru residents until the dispute is resolved. The next hearing of the case is set for November 26.

“Kenyan law clearly gives rights of ownership to people who have occupied land for more than a decade without the interruption of the title owner,” says Ms Jane Weru, a director at Muungano wa Wanavijiji.

The lobby group claims that the land was occupied prior to the 1987 transfer from National Bank of Kenya. Muungano wa Wanavijiji says that three Mukuru residents had petitioned the government for ownership of the property in 1985. Due to unclear reasons, the petition was rejected.

The right for squatters to legally acquire property after occupying it for an extended period of time is drawn from laws on adverse possession as outlined in the Law of Limitations Act.

However, they will have to contend with Orbit’s assertion that all their dealings with the property had been halted for more than a decade by the government caveat in the upcoming court battle.