A court has ordered a branch of the Presbyterian Church of East Africa (PCEA) to pay a manr Sh2.5 million in damages for trespassing on his two parcels of land in Mariakani, Kilifi County.
PCEA has also been given three months to move out of the plots, where it operates a girls’ secondary school, after the court ruled that Mr Nicholas Munyi Kaigua is the rightful owner of the land.
“I declare that the first defendant (the church) has no right to be on that land. Having no proprietary rights over it, it (church) is hereby declared a trespasser,” ruled Justice Sila Munyao of the Environment and Land Court in Mombasa.
Justice Munyao also ordered the church to remove its structures from the land within three months. If it fails to do so, he said, Mr Kaigua would be at liberty to demolish them and bill the church.
The judge found that the church started developing the land although it did not have a title deed in its name for it.
“Why was the church proceeding to construct in a hurry on land that it even did not have title to? It was careless if not reckless to do so,” Justice Munyao said.
“How do you proceed to undertake massive investment of a school development on land that you have no title to?”
Through lawyer Gikandi Ngibuini, Mr Kaigua had sued the church asserting that he was the owner of the two plots.
Mr Kaigua purchased the properties while they were under adjudication and the register ended up reflecting his name and he was subsequently issued with title deed.
For its part, the church said it purchased the land and other nearby parcels, totalling 24 acres, from Ms Jumwa Jefa and Ms Sidi Chengo (who have since died).
Church elder Samwel Thairu said it first purchased from Ms Chengo 5.3 acres before reaching a deal with her and Ms Jefa to purchase a further 19 acres.
Mr Thairu told the court they paid the sellers, took possession of the land and built a girls’ secondary school on it.
He said that they engaged a surveyor, who fraudulently registered the land in the names of the deceased women and illegally proceeded to subdivide it.
On cross-examination by Mr Ngibuini, Mr Thairu could not explain how PCEA got the approval to build the school without a title in its name.
The court also noted that another defense offered by the church was that it rightfully purchased the land from the deceased.
But the court said that the sales happened before the land was adjudicated in 2010 and what the church purchased was subject to adjudication.
“If the adjudication process found that the land was not of the vendors (deceased), then any person who purchased from them could not get a good title. Their title was contingent upon the vendors succeeding in the process of adjudication,” Justice Munyao said.
The court also noted that the deceased sellers were not successful during adjudication and it had seen evidence that they had disputes with their neighbours that were determined by the adjudication committee against them.
“If they lost, which they did, then any person who purported to purchase land from them cannot claim to now have good title to the land,” the judge said.
“It follows that the church cannot be protected by hiding behind the sale agreements entered into with Jumwa Jefwa and Sidi Chengo.”