No more compensation for families whose land hospital was built

Three families whose 12-acre land was taken by the government by force for construction of a hospital in Othaya will not get more compensation, a Nyeri court has ruled.

Justice Lucy Waithaka of the Environment and Lands Court dismissed the families’ petition and ruled that they failed to make a case against the State.

The families of Wangechi Karoing’o, Thinji Kihiuhu and Githinji Wambugu lost the protracted dispute that started in 1990 when they were evicted from the land.

The land was acquired by government in 1979 for construction of a ward named Nyayo and extension of a hospital, previously known as Othaya District Hospital.

The court heard that the families were paid Sh9,151 per acre.

'ADEQUATE COMPENSATION'

In the court case filed in 2017, the claimants wanted more compensation arguing that the land was undervalued. They said they were supposed to be paid Sh120,000 per acre of land.

“We were forced to lead and live in squatter life which was contrary to our life wishes since we did surrender our family land to the State in good faith without adequate compensation,” the families said in a letter to the then Minister for Lands, Amos Kimunya, dated April 20, 2004.

The letter was produced in court.

They noted: “It is a pity the former government did ignore and neglected to pay the beneficiaries the right award on the disputed land although the claimants have petitioned the same without valid assistance forthcoming from the State.”

The families sued the National Lands Commission and the Ministry of Health arguing that the applicable legal procedures were not complied with in the acquisition of the land.

As a consequence, they suffered and have continued suffering loss and prejudice as their family members were rendered destitute, homeless, hopeless since they were left without any source of livelihood.

The court heard that transfer of the land has never been effected and the title deeds are still in the names of the three persons, who are now dead.

But Justice Waithaka, while dismissing the case, questioned about the long delay in lodging the claim for further compensation and also the procedure used.

“It appears that from 1979 when the suit properties were compulsorily acquired to about 2004, more than 20 years after the alleged illegal acquisition, the petitioners had not raised any issue concerning the alleged breaches of law in the acquisition of the suit properties by respondents,” noted Justice Waithaka.

She said the law provides for a procedure which any person aggrieved with the acquisition process or the award could use to challenge the process or the award.

She cited Section 29 of the Land Acquisition Act, Cap 295 Laws of Kenya, which says those dissatisfied with award given for acquisition should challenge the decision at the lands’ tribunal before proceeding to High Court.

According to Justice Waithaka, since the families failed to give any satisfactory reasons for failure to use the legal procedures, they cannot argue that their rights were violated on account of the alleged inadequate compensation.

“No evidence was adduced capable of demonstrating the amount paid to the petitioners was not in accordance with the value of the land at the time the land was acquired. It is not enough for the petitioners to claim the amount awarded was grossly low,” she stated.

The court said it was upon the families to prove the fact of undervaluation by production of something like a valuation report done at the time the land was compulsorily acquired.

This, she said, would have guided the court in making a determination on that issue.

“No such valuation report or any document capable of guiding the court on the value of the suit property at the material time was availed,” stated Justice Waithaka.

The court found the law and the applicable procedures were complied with in effecting the acquisition of the suit properties.

In reply and opposition to the petition, NLC and the Health Ministry said the owners of the suit land were compensated and no complaint was raised by the owners concerning the compensation paid or the process that led to acquisition.

Terming the complaints by the families as an afterthought and the petition an abuse of the court process, the respondents pointed out that the claimants acknowledged having received compensation in respect of the suit properties.