Government loses military land to Garissa businessman

Military officers at their Garissa camp on April 4, 2015. The government has lost ownership of an expansive public land reserved for military activities to businessman Mahat Kuno Roble. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • The court of Appeal in Nyeri upheld the decision of Environment and Lands Court to award the businessmen Sh1.5 million as damages.
  • In the application, the lawyer indicated that the judgment by Justice Boaz Olao was delivered without any notice of its delivery to the ministry and to the AG.

  • Defence Principal Secretary Saitoti Torome stated that the disputed land was occupied by Garissa Military Camp.

The government has lost ownership of an expansive public land reserved for military activities in Garissa to businessman Mahat Kuno Roble and his four business associates.

The Court of Appeal in Nyeri upheld the decision of Environment and Lands Court to award the businessmen Sh1.5 million as damages, and to stop Ministry of Defence from interfering with the parcel of land occupied by Garissa Military Camp.

Justice Daniel Musinga rejected Attorney General’s application for extension of time to appeal the ruling dated August 16, 2016 for failing to adhere to regulations of the Court of Appeal.

 DELAY

The judge found that the application was filed nearly eight months after the filing of the notice of appeal and no reason had been advanced for that delay.

“Further, the applicants had not filed a draft memorandum of appeal to demonstrate that the intended appeal had any chances of success,” said Justice Musinga.

State Counsel Motari Matunda said the State  had substantial grounds of appeal and the Defence Ministry, Attorney General (AG) and the public would suffer irreparable loss if  the decision is not overturned.

He said the case was a matter of public interest.

In the application, the lawyer indicated that the judgment by Justice Boaz Olao was delivered without any notice of its delivery to the ministry and to the AG.

JUDGMENT

“The failure to notify the applicants denied them the right to know the outcome of the judgment in good time, hence the delay in filing the notice of appeal,” explained Mr Matunda.

The court heard that the State Counsel, after lodging the notice of appeal on September 30, 2016, embarked on the process of obtaining a copy of the judgment.

Justice Musinga noted that Mr Mutunda obtained certified copies of the judgment on November 23, 2016.

Defence Principal Secretary Saitoti Torome, stated that the disputed land was occupied by Garissa Military Camp.

He added that the land in dispute was at risk of being alienated if the appeal was not allowed.  

DEMOLISHED

Mr Mahat told the court that government had unlawfully demolished the perimeter wall around the suit properties and threatened to forcefully acquire the land.

He termed the government’s move to the suit property as ‘mistaken assumption that it was government property’.

The court heard that the disputed land has three parcels registered as Garissa Municipality Block 111/561, 562 and 563.  

Mr Mahat said even after delivery of the judgment, the government failed to comply with the orders issued by the trial court.

In the disputed judgment, the Lands Court Judge Boaz Olao found that the businessmen had valid titles to the suit properties.

NO EVIDENCE

Judge Olao also found that no evidence was adduced by the State to show that the land had at any time been gazetted as public land for use by the Garissa Barracks.

The court ruled that Ministry of Defence failed to demonstrate that it was in lawful occupation of the suit properties.

While upholding the decision, Justice Musinga complained that the ministry had demolished the businessman’s boundary wall in contravention of a lawful court order.

“Against such a background, the applicants ought to have filed a draft memorandum of appeal to demonstrate that the intended appeal has high chances of success. They did not,” said the Appellate judge while dismissing the State application.

“The applicants are still in occupation of the suit properties and have not also paid the amount of Sh1.5 million that was awarded to the respondents by the trial court,” said judge Musinga.