Parking lot case goes to appeals court

The Ethics and Anti-Corruption Commission has moved to the Court of Appeal seeking to recover a prime parcel of land in Nairobi set aside as a road reserve but allegedly allocated to a private company 20 years ago.

The anti-corruption agency is challenging the High Court ruling that the land, adjacent to Nyayo House and used as a parking lot by the Intercontinental Hotel, belongs to Willesden Investments Ltd.

However, EACC claims the land in question was hived off Kaunda Street in 1967 and was meant to be a road reserve to link Uhuru Highway and the Central Business District.

Willesden claims it obtained a 99-year-lease in 1994 to develop the property but was obstructed in 2004 after City Hall called for the revocation of the lease on grounds that the land was excised from a road reserve.

EACC argues in its latest application to the appellate court that the allocation of the plot to Willesden by then Commissioner of Lands Wilson Gachanja was in breach of many statutes, including the Government Lands Act, Local Government Act and Physical Planning Act.

AWARDED SH22M

On November 17, the parties appeared before Justices John Mwera, Daniel Musinga and Mrs Agnes Murgor. However, the hearing could not proceed because Mr Mwera and Mr Musinga had handled the dispute when they served as judges in the High Court.

The judges directed the parties to make fresh hearing dates at the court registry. A new three-judge bench will be constituted to determine the dispute.

Sued together with Willesden are its directors Mr Ben Muli, Mr Jatin Patel, Mr Hitesh Rathhood, Ms Martha Kimwele and Mr Gachanja.

Willesden has been in a long legal tussle with EACC and City Hall and Kenya Hotels Properties Ltd, the owners of the Intercontinental.

In 2000, Willesden accused Kenya Hotels of trespass and were awarded Sh55 million by the High Court for loss of profits from the property; the award was later scaled down to Sh22 million by the appellate court.

The five-star hotel argued in its suit against Willesden that the firm lost possession of the land in September 2004 when City Hall reclaimed the property and therefore could not sue the hotel or City Hall for trespass on a public utility land.

JUDGE ACCUSED
City Hall also contended that no permission could be granted to develop the land on account of its size.

But after losing the court battle, City Hall agreed to pay Willesden Sh85 million in damages and loss of profits and subsequently surrendered the parcel to the company.

“City Hall shall henceforth not interfere with the firm’s quiet enjoyment of the parcel L.R. 209/12748,” read the consent signed by the parties before Justice Gorge Odunga in 2012.

The ownership dispute featured prominently before the judges and magistrates vetting board after accusations were made against ousted Court of Appeal judge Emmanuel O’Kubasu over a ruling he delivered on the case.
An advocate accused Mr O’Kubasu of having a relationship with a prominent businessman with interest in the case and said a ruling by the judge on the dispute contained anomalies. Mr O’Kubasu denied the claims.