The National Land Commission (NLC) did not have the jurisdiction to preside over the complaint on the restitution of the land on which the controversial Weston Hotel stands, court documents state.
In the latest filings on the long-running dispute, the Kenya Civil Aviation Authority (KCAA), which claims ownership of the land along Lang'ata Road in Nairobi, further claims NLC lacked jurisdiction to render a determination over its claim for restitution.
The hotel is owned by Deputy President William Ruto and has been the subject of a protracted legal and political battle after it emerged that the land was allegedly acquired irregularly.
The agency says under Section 14 of the NLC Act, the commission’s mandate to review grants and dispositions of public land expired five years from commencement date of the Act, which was May 12, 2012.
Through lawyers James Orengo and Otiende Amollo, KCAA argues that NLC’s mandate to review grants and dispositions of public land expired in May 2017 — even as the commissioners’ terms ended in February this year.
The agency last week filed an application in the high court challenging the deal brokered between NLC and the owners of Weston Hotel. The decision required the facility to compensate KCAA for occupying its land instead of having the hotel demolished.
“NLC had no powers to review grants and dispositions by January 25, 2019, which is more than one year eight months late. This suggests deliberate delay by the NLC to frustrate the KCAA,” reads part of the pleadings filed in court.
In the decision delivered on January 25, 2019, NLC recognised and emphasised that KCAA’s entitlement to the piece of land remained unchallenged and noted that Weston Hotel and initial owners; Priority Ltd and Monene Investments Ltd, irregularly procured the registration of the land.
The NLC ordered Dr Ruto’s hotel to compensate KCAA. But in the court papers filed by Mr Orengo and Mr Amollo, KCAA insists it owns the land and any entity with a different title procured registration through illegality, fraud, and corruption.
It argues that the NLC decision was irregularly signed “for the chairman”— the embattled Prof Muhammad Swazuri, who is facing multiple corruption charges — by the Vice Chair Abigael Mbagaya, despite there being no vacancy in the office of the chairperson.
KCAA Chief Executive Officer Gilbert Kibe describes the move as null and void in the court papers.
“Having not been appointed or taken oath of office as chairperson (pursuant to the First and Second Schedules to the NLC Act), it was not competent for the vice-chair to arrogate unto herself powers of the chairperson to sign off a decision of the NLC as the chairman in the absence of any vacancy in the office of the chairman. The determination does not therefore qualify as a lawful determination of the NLC,” Mr Kibe states.
He further argues that the NLC decision was null and void because it was signed by one commissioner to the exclusion of other commissioners, which violates regulation 14 (1) of the NLC (Review of Grants and Dispositions of Public Land) regulations 2017 that requires a committee of at least three commissioners to hear complaints lodged at the commission.
KCAA argues that NLC lacked jurisdiction to order Weston Hotel to pay compensation for public land grabbed by private parties a decision it says was irrational.
It says NLC’s determination was irrational and irregular as no party pleaded for compensation. It argues that the final order also fails to account for the fixtures on the land, making the order ambiguous and absurd incapable of implementation.
Similarly, the determination is irrational because NLC deliberately turned a blind eye to the corrupt dealings of the respondents instead of upholding the KCAA legitimate expectation.
“NLC powers under Section 14 of the Act are limited to making a determination of whether the title was acquired lawfully, regularly or unlawfully, or to order revocation of title. Powers to order compensation are specifically limited to historical land injustices under section 15 (9) (b) of the Act.”
It says NLC acted beyond its powers placing upon itself the task to determine the current market value of the property, thereby unlawfully arrogating unto itself powers contrary to the Constitution. Nowhere in the Constitution or statute is the NLC vested with mandate or jurisdiction to conduct valuation, which function is reserved in the Chief Government Valuer.
After establishing it owned the land, KCAA faults the NLC saying it aggravated and attempted to whitewash the illegality it (KCAA) suffered by ordering that it must accept compensation and to purchase land of equal value, yet it specifically sought restitution of the land.
The agency argues that NLC acted unlawfully by purporting to order that compensation be paid to the KCAA for public land.
“It is clear that L.R. 209/14372 was public land held by KCAA for use in discharging its public mandate. Only through surrender to the national government and subsequent reallocation to any private party following due process can public land be allotted for private use,” KCAA argues.
KCAA wants the court to issue the order quashing the NLC decision dated January 25, 2019 together with all orders, actions and decisions made in respect of the piece of land known as L.R. 209/14372 and the developments thereon, for having been made without jurisdiction, and for being illegal, irrational and procedurally irregular.
Following the KCAA arguments, Justice Benard Eboso has ordered that the land should not be used as security or transferred to any other party. NLC, which is yet to get new commissioners, has also been barred from evaluating the land in the process of compensating the civil aviation authority.
“In the interim period, a conservatory order preserving the status quo and suit property is granted restraining the first respondent from undertaking the valuation or taking any other decision, step, action or measure towards implementation and or enforcements of the determination of the NLC dated January 2019,” said the judge.