County fights to stop KBC from fencing disputed land
What you need to know:
- Through lawyer Lucy Momanyi, the county government argues that before the orders were issued, there was no formal application in which it was given adequate notice to respond.
- Ms Momanyi further argues that the requirement of approval of planning permission (for fencing) from the county government is not only preposterous but it is a mandatory requirement prescribed by an Act of Parliament.
- Through her submissions, Ms Momanyi said by the court granting the orders, the effect was that KBC had achieved the required results that were the basis of its complaint.
The county government of Mombasa is seeking to have orders issued to Kenya Broadcasting Corporation (KBC) allowing it to complete fencing a disputed parcel of land set aside.
Through lawyer Lucy Momanyi, the county government argues that before the orders were issued, there was no formal application in which it was given adequate notice to respond.
Ms Momanyi further argues that the requirement of approval of planning permission (for fencing) from the county government is not only preposterous but it is a mandatory requirement prescribed by an Act of Parliament.
Through her submissions, Ms Momanyi said by the court granting the orders, the effect was that KBC had achieved the required results that were the basis of its complaint.
“It was necessary that the applicant ought to have been given prior adequate notice of KBC’s intentions to seek for such orders through an interlocutory application,” said Ms Momanyi.
Ms Momanyi added that the county government should have had an opportunity to fully respond to such an application to be canvassed in court before any determination could be made.
She further submitted that the order extracted and issued does not state the particulars of the claim that was before court.
The county government want the order suspended (stayed) or reviewed and in the alternative vacated.
It argues there was no formal application filed in respect of which the county government was given adequate notice to respond to and a ‘fair hearing’ conducted before the orders were made and issued.
KBC also filed an application seeking to have Mombasa Governor Hassan Joho, County Secretary and Lands Executive Anthony jailed for allegedly disobeying a court order.
Through lawyer Protas Saende, the national broadcaster also wants the court to find the county officials in contempt of court for willful and deliberate disobedience of the order issued by the court.
KBC also wants the court to order that one of the conditions of purging the alleged contempt be immediate payment of Sh1.9 million paid by KBC for fencing the disputed piece of land.
On Thursday, Justice Anne Omollo gave Ms Momanyi seven days to consult her client on the proposals by KBC seeking both parties to forgo the applications and argue the main hearing concerning ownership of the disputed land.
“Rather than spend time in applications, we are of the view to take the main hearing of the suit for determination of the dispute,” Mr Saende told the court.
In the main suit, KBC is seeking a declaration that it is the owner of the property and that the Oldbay Ltd a second defendant in the case was wrongfully and unlawfully, through fraud, registered as the owner of two plots.
The broadcaster is also seeking a permanent injunction to prevent the county government and Oldbay Ltd from interfering with its possession of the land or carry out any dumping.
The case will be mentioned on February 6.
