NLC ordered to pay Sh1.2bn for Mombasa Southern bypass, Kipevu roads land
Motorists drive through the Southern Bypass in Mombasa in this photo taken on May 18, 2021.
The National Land Commission (NLC) has been ordered to pay Sh1.2 billion as compensation for 16.2 hectares of land taken over by Kenya National Highways Authority (KeNHA) for the construction of the Mombasa Southern By-pass and Kipevu Terminal Link road.
Justice Stephen Kibunja of the Environment and Land Court in Mombasa further directed payment of interest rate at 13 per cent from January 2017 when KeNHA took over the land until payment in full.
He ruled that failure by NLC to follow the laid down procedure in the compulsory acquisition of Mr Karim Mohamed Hassanali’s land including to serve the statutorily required notices upon him made the process disorganised and not in conformity with the constitutional protection of rights to property under Article 40 of the Constitution and provisions on compulsory acquisition.
“The process the first defendant (NLC) used to acquire the plaintiff’s (Mr Hassanali’s) land, the takeover and use by the second defendant (KeNHA) fell short of adherence to the constitutional and statutory procedures prescribed and was therefore unlawful,” ruled Justice Kibunja.
The court noted that the testimony of Mr Hassanali to the effect that he was still holding the title for the whole parcel of land which he produced as the exhibit was uncontroverted by the defendants.
“This means the section of the road infrastructure that was put up on the 16.2623 hectares of land taken over by the first defendant, with government resources, is on land still privately registered, contrary to the expectation of section 118(2) of the Land Act,” ruled Justice Kibunja.
The judge ruled that the plaintiff is entitled to just compensation for the portion of the land that was unlawfully acquired by NLC and taken over by KeNHA on which a road infrastructure has already been constructed.
The plaintiff told the court that he was claiming compensation upon compulsory possession of the 16.806 hectares of land excised from a parcel of land in which he was one of the registered and beneficial owners.
He said that the first defendant had on or about March 18, 2014, under Kenya Gazette No. 1796 of March 21 2014 published the intention to compulsorily acquire on behalf of KeNHA 16.2623 hectares of land from the parcel of land for construction of Mombasa Southern By-pass and Kipevu Terminal Link road.
The plaintiff told the court that in January 2015, the defendants compulsorily took possession of the 16.806 hectares from LR. No. MN/V/486, which was valued at Sh1,214,000,000 as of June 30, 2017.
He added that the defendants did not pay just compensation upon taking over the land thereby violating Article 40(3)(b)(i) of the constitution and section 115 of the Land Act.
The plaintiff testified that no notices of inquiry, award, taking possession or any other decision were ever served upon him and that he only got to know of the acquisition of his land when he saw KeNHA already on it going on with its construction in 2017.
In its statement of defence, NLC opposed the plaintiff’s claim and said that his claim if any is for Sh137,521,600 that will be paid after all outstanding ownership disputes are resolved and that interest can only start to accrue from the date of issuance of notice to take possession.
On its part, KeNHA also opposed the plaintiff’s claim saying that when it was undertaking the construction of the Mombasa Port Area Road Development project, part of the parcel of land subject matter of the case was gazetted for compulsory acquisition.
It said that the portion of the land affected was 16.2623 hectares and not 16,806 hectares as alleged and that the affected property was inspected, valued and an award issued by NLC.
KeNHA argued that under the comprehensive compensation schedule forwarded by NLC to it dated September 5 2014, the land was listed as “land whose ownership was not established.”
