Family’s hopes for SGR millions extinguished as tycoon firms win

A Mombasa family’s hopes of benefiting from Standard Gauge Railway (SGR) millions have diminished after a land battle with three companies was thrown out.

The Environment and Lands Court told representatives of the estate of James Kamau Thiong'o that the land in dispute had been acquired by the government in 1976.

Judge Charles Yano ruled that documentary evidence tabled in court, including proof of compensation, had revealed that the compulsory acquisition process for parcel No. MN/VI/755 was completed back in 1977, and the family’s title extinguished.

“I’m satisfied that the government of Kenya is the owner of the suit parcel of land and has been so since 1977. It is, therefore, my finding that the plaintiff’s suit is otherwise an abuse of the court process,” the judge said.

The ruling was a relief for three companies - Golden Sparrow Trading Company Ltd, Mjad Investment Ltd, Africa Gas and Oil Company Ltd - that had been sued in the case for trespassing and encroachment.

Monica Wambui and Zacharia Njenga sued the three firms and the registrar of titles in 2013, seeking possession of the property.

They also sought a permanent injunction against the companies, which they claimed had alienated their property.

The case was struck out after registrar of titles John Wanjohi revealed that the land had been acquired by the government in 1977.

Court documents tabled in court by Mr Wanjohi indicate that the process of compulsory acquisition of the property started in 1976 and was completed a year later when Mr Thiong’o (now deceased) was paid a total of Sh99,553.70 as compensation for the land.

The documents indicate that Mr Thiong’o was among landowners who benefited from a Sh7.2 million compensation when their plots in the Miritini industrial and housing area were compulsorily acquired in 1976.

“From the evidence on record, it is undisputed that the Kenya Gazette notice numbers 737 and 738, dated March 12, 1976, were issued, and no evidence of cancellation of the compulsory acquisition process had been produced,” said counsel Emmanuel Makuto, for the registrar of titles.

Mr Makuto said evidence showed that Mr Thiong’o had been compensated, vacated the land and the government took possession.

“Under the Land Acquisition Act, the late Thiong’o’s title of the land was extinguished immediately the government took possession of the parcel of land, and never reverted to the original owner or his descendants,” he said.

But the family had vehemently denied the alleged compulsory acquisition and compensation claims, arguing that the process was not completed and sought a full hearing of their case.

They argued that the land registrar’s records showed that Mr Thiong’o was still the registered owner of the land, and that the title had neither been cancelled nor extinguished.

“The process of acquisition was never completed. The registrar of titles has contradicted himself in many ways,” said the family’s lawyer Onyango Wameyo.

Mr Wameyo argued that gazette notice No 737 of March 12, 1976 was a declaration of the intention to acquire the land, which could not have been concluded on the same date as alleged by Mr Wanjohi.

“Our case is primarily not about the alleged acquisition but of encroachment. The causes of action leading to the filing of this case are acts of trespass, annex, cut off, alienation, dispossession and unlawful taking of possession of part of the deceased’s property,” he said.

The ruling is a blow to the family, who had hoped to get a share of the SGR millions that it claimed was paid to Africa Gas and Oil Company for its property.

Ms Wambui and Mr Njenga were in court over Sh519 million they said was paid to the company. They argued that the money should have been paid to them.

This ruling puts them in an awkward position because their hopes were pegged on the ownership of the land (MN/VI/755), which the court has ruled belongs to the government.

The case was also struck out because it was filed outside time limits, with the court saying it is statute-barred and cannot be sustained.

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