Property owners win big in landmark ruling

Thursday July 11 2019

Governor Mike Sonko

A wall erected on a road reserve being demolished in South C estate on July 28, 2018. Appellate judges Fatuma Sichale and William Ouko granted victory to owners of homes in Nairobi’s Runda Mimosa estate whose premises had been earmarked for demolition for being built on a road reserve. PHOTO | FILE | NATION MEDIA GROUP 

MAUREEN KAKAH
By MAUREEN KAKAH
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Government entities will now take great caution when earmarking people’s premises for demolition, if a recent Court of Appeal judgment holds.

Appellate judges Fatuma Sichale and William Ouko granted victory to owners of homes in Nairobi’s Runda Mimosa estate whose premises had been earmarked for demolition for being built on a road reserve.

The dispute spilt over to the courts in 2010 after 30 individuals as well as companies filed two lawsuits to challenge notices on their fences that earmarked their property for demolition.

Having lost their case at the High Court in 2013, they moved to the appellate court, where judges Sichale and Ouko ruled that their right to property was threatened by earmarking their properties for demolition.

JUDGES' RULING

The judges faulted the Kenya Urban Roads Authority, ministries of Lands and Roads, Kenya National Highway Authority and the Attorney-General, who had been sued in the case.

“The threat to demolish the appellants’ properties by the sued parties was real, the perimeter walls around their properties had been earmarked for demolition yet the same respondents were the authors of the confusion,” the judges ruled.

But besides granting victory to the petitioners in the case, the judges pointed out that nuisance and trespassing laws exist so that “property owners in general can perfectly enjoy without any unreasonable interference even from the government”.

“In Kenya the attachment to land is passionate, emotional and almost fanatical; nations, neighbours, siblings, spouses and even strangers fight over land. In some instances, the disputes degenerate into bloodshed and death … it is in the context of this protection of the land owner by the law that the contest in this appeal should be understood,” said Justice Ouko.

RIGHTS VIOLATION

In the June 7 decision, the judges ruled that government entities responsible for land matters cannot issue titles to owners of properties and then turn around and accuse them of having built on road reserves after years of making serious investments.

They pointed out that it had not yet been established that the petitioners built their property through fraud and hence the notice for demolition was a clear violation of their rights.

They also ruled that all land surveys, whether conducted by licensed government surveyors or not, must be submitted to the director of survey and authenticated as required by law.

The judges said the petitioners in this case were innocent purchasers who had relied on the contents of the land registry records to acquire the properties.

They also said that it would be contrary to the intent of the law for a party seeking to acquire interest in land to go beyond the register to establish ownership and the history of the past transactions involving that land.

“I have no difficulty in arriving at the conclusion that the appellants discharged the burden placed upon them, they were the registered owner, as far as the evidence before the court goes, they obtained that registration lawfully and their titles were, in the circumstances indefeasible as there was no proof of fraud,” said Justice Ouko.

PROPERTY STATUS

He added that the only reason the law requires the keeping of land records is to afford a notice “to the whole world” of the status of the property.

The land in question had been purchased from Runda Coffee Estate Ltd, but its original owners are said to be Edith Gladys Cokburn, Estav Ltd and Mimosa Plantations Ltd.

One of the companies among the petitioners, Cycad Properties Ltd, told the court that it had invested Sh600 million to build 19 residential houses, ancillary facilities and a perimeter wall.

Other petitioners claimed to have spent about Sh 35 million to put up their homes after getting all necessary approvals.

They protested against the government’s intention to acquire a part of their properties though they had not been notified and only learnt about it from the notices.

They were accused of encroaching on 20 metres of the road reserve.

But the State told the court that sections of their land were being acquired compulsorily.

While the High Court blasted the petitioners for not finding out the true status of their properties at the time of purchase, the appellate court defended them, saying they have every right to protect their duly acquired property.

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