The National Land Commission abused its statutory powers in refusing to compensate four Mombasa residents, whose two parcels of land the government acquired for construction of the Standard Gauge Railway.
The High Court made this ruling on Monday, adding that a decision by the NLC, not to include or consider the interest of land owners Theresa Runji, Marieta Gitonga, Naomi Kiio and Sammy Macharia, was unconstitutional as they were not heard before it was reached.
Justice Eric Ogola further ruled that the decision amounted to abuse of office as it was reached in disregard of the commission's own previous findings.
He directed the NLC to tabulate, asses and compensate the petitioners the value of their two properties, No 3912 and 3913/VI/MN (being the disputed part of Plot No.MN/VI/4805), as at the date of the acquisition plus interest at commercial rates.
Justice Ogola said the court was dismayed that Sh1.4 billion and another Sh360,000 were awarded to Miritini Free Port Ltd, an interested party in the case, as compensation for compulsory acquisition of part of the land without consideration of the petitioners' interest.
“My understanding is that this money has already been disbursed and the petitioners left without land. Justice demands that the petitioners be justly and promptly compensated for the loss of their land,” he said.
The judge also noted that the commission had always been aware of the petitioners' claimed interest on the land yet they were not served with a notice informing them of the government’s intention to compulsorily acquire it.
He further said that given that the petitioners' constitutionally guaranteed property rights were taken away in an irregular manner, the only avenue open to them was filing the petition.
The court further said that the disputed part of the land belonged to the petitioners so its registration under Miqdad Enterprises was illegal since it was done in violation of an order.
“The petitioners have suffered serious constitutional violations of guaranteed rights for which they are entitled compensation,” said Justice Ogola.
However, the judge noted that there was unchallenged evidence that Miritini Free Port remained the registered owner of the undisputed part of land.
He said there was no dispute on that part of the land, hence the NLC's decision of December 1 2015, to the extent that it related to that piece of property, was unchallenged.
“For avoidance of doubt, this judgment relates to only part of the suit property (two parcels of land) claimed by the petitioners."
The judge further said the four residents were entitled to damages as part of the compensation to be awarded by the NLC.
Through lawyer Gikandi Ngibuini, Ms Runji, Ms Gitonga, Ms Kiio and Mr Macharia argued that they were entitled to full compensation before their property was acquired for public use.
They said their right to prompt and full compensation under the Constitution was infringed upon, exposing them to economic hardships, losses and damages.
“The allocation was as a result of the resettlement exercise following eviction of the petitioners, with others from parcels of land in Bombolulu to the President of the United Arab Emirates for building of an orphanage,” the petition states.
The commission argued that the petitioners did not give evidence showing the pieces of land were subject to compulsory acquisition by the government.
The lands agency also argued that the NLC Act vests it with jurisdiction to determine the legality of all grants and dispositions of public land, either on its own motion or upon receipt of a complaint.
Miritini Free Port opposed the petition terming it abuse of the court's due process, and saying that was was being sought could not be granted.
“The petition seeks orders directed at the NLC for compensation, which are not within the purview of the of the interested party (company),” the organisation's legal officer, Mr Joseph Mwella, said in his affidavit.