A city church is facing eviction after the Court of Appeal refused to stop a private company from claiming ownership of the land on which it is built.
The land at Donholm in Nairobi's Embakasi sub-county is home to a church hall and a nursery school with a large number of pupils.
Africa Gospel Church, which claims to be the registered owner of the disputed land, has twice lost in the country's second highest court in its bid to secure the property.
In April 2023, judges Hellen Omondi, John Mativo and Ngenye Macharia noted that the same court (Court of Appeal) had ruled on a similar application by Victor Mungai Kamunge and Continental Development Limited (CDL) to restrain them from entering the land.
The three judges said Bishop Robert Kipkemoi Langat, one of the registered trustees of the Africa Gospel Church (AGC), had lost a similar application in the same court in April 2023 seeking to restrain Kamunge and CDL from evicting them from the disputed land; Nairobi/Block 82/5893.
The judges were quick to add that on May 15, 2023, having lost the first round of the case, Bishop Langat fired a second salvo at Kamunge and CDL, this time seeking to introduce new evidence in the new appeal application.
In the appeals, the registered trustees of AGC sought to stay execution of the Environment and Lands Court (ELC) judgment of August 30, 2022, which cancelled the title deed issued to the church.
A director of the CDL, Bernard King'ori Thiga, filed a lengthy affidavit opposing the church's appeal to set aside the High Court judgement.
In its judgment, the three-judge bench noted that on May 30, 2018, Kamunge and CDL sued the church for a declaration that the land on which the place of worship was built was a public utility land, which had been preserved as a "green space and playground for children".
In the impugned judgment of August 30, 2022, the trial judge "ordered the cancellation of the title number; Nairobi/Block 82/5893 issued in the name of Africa Gospel Church".
The judge also granted a perpetual injunction restraining Africa Gospel Church from interfering with the said land.
However, in its submissions to the court, the church makes it clear that it did not grab the land, nor did it acquire it fraudulently, claiming that it followed the proper procedure to own the disputed land.
It claims that on 23 August 1995, the then Commissioner of Lands allocated it the land, which he described as "unsurveyed church and nursery school Donholm Nairobi" in plan number 42/12/95/14.
Bishop Langat says that following this allocation, the church was required to pay Sh6,004, which it did.
It was issued with a lease dated 16 July 1996.
The church further alleges that the Director of Physical Planning amalgamated the two plots of land for the church and the nursery school into one and then issued one title number Block 82/5893.
But Bishop Langat says he was "shocked by Kamunge who claimed that he bought the land from CDL, but CDL sub-divided the original land, which was LR No212/2/R, and handed over the two parcels to the government, after which they were allotted to the church".
In its appeal, the Church argued that the ELC judge erred in law and fact by relying on CDL's evidence that it "never surrendered the land to the government".
CDL also failed to produce any title deeds to prove ownership of the disputed land.
In opposing the stay of the 30 August 2022 decision, Kamunge and CDL told judges Omondi, Mativo and Macharia that they were not interested in hearing the substantive appeal.
Kamunge and CDL therefore urged the three judges to dismiss the stay application to pave way for them to occupy the land.
In their ruling, the judges dismissed, with costs, the church's application for a stay of execution of the High Court judgment, saying it had "no arguable appeal".
The appeal judges said Kamunge and CDL had succeeded in showing that AGC's second appeal was res judicata (the same issues raised had been decided earlier).
They ruled: "The registered trustees of AGC cannot escape the wrath of res judicata by using the pending application to adduce additional evidence and purport to seek orders which were sought and refused in a previous application.
In their ruling, Omondi, Mativo and Macharia said: "We are of the view that to ask this court to deliberate again on the issue of stay of execution of the same judgment delivered on 30 August 2022 is tantamount to asking this court to hear an appeal against its own judgment."
They went on to declare that the application of 15 May 2023 "is without merit and is hereby dismissed with costs".
This ruling means that the church and kindergarten will be demolished and the students relocated elsewhere.