Battle for Sh1.6bn disputed land in Mavoko headed back to court
The disputed Sh1.6 billion plot of land in Machakos County was a private property granted to Cecil Higgs in 1931 on a 999-year lease.
The battle over a disputed Sh1.6 billion plot of land in Machakos County between the owners of Megvel Cartons Limited and Diesel Care Limited has taken a new twist as the fight is headed back to court.
The development comes after Joseph Odero, who sold the disputed land to Megvel owner Prasul Shah, approached the Machakos magistrate's court - Lands and Environment Division - seeking an order directing the National Lands Commission and the Chief Land Registrar to preserve the records of the two disputed plots pending hearing and determination of the case.
Mr Odero also wants the court to declare that he is the registered owner of the land on the grounds that the said land was alienated and not available for allotment by the Commissioner of Lands to other persons.
The petitioner said he was about to lose his property illegally and fraudulently and also face astronomical losses claimed by his successors in title following the cancellation of the title.
The suit also names Diesel Care Limited, the Director of Surveys and the Attorney General as defendants in the 13-year-old case.
According to documents seen by the Nation, the land in question was a private property granted to Cecil Higgs in 1931 on a 999-year lease before being transferred to Beacon Ranch Limited in 1949. Part of the land, 13.2 acres, was then transferred to Margaret Mestery in 1951.
Margaret Wamaitha Humphreys then purchased the property in October 1970 before subdividing it into various units and selling a unit of 9.186 hectares to Joseph Odero with the transfer registered in October 1986 as IR 6458/16.
Mr Odero was then issued with title L.R. No. 1504/11 (I.R. No. 41771), which was demarcated on Deed Plan No. 111527 on 15 October 1986.
In his petition, Mr Odero said that at the time he purchased the private property, it was agricultural land, but he decided to sell it and applied for a change of use of the land from agricultural to industrial in August 1998.
According to the documents provided, the then Commissioner of Lands, in a letter dated 8 June 1999, asked Mr Odero to surrender the existing 999-year lease in exchange for a 99-year lease as one of the conditions before granting approval for the change of use.
Mr Odero accepted the conditions on June 16, 1999 and the Commissioner, by letter dated June 24, 1999, approved the change of use and he was issued a new title L.R. No. 25064 (IR No. 85088) with the new user being Industrial.
"In compliance with the conditions of approval of the change of use, Mr Odero surrendered title LR No. 1504/11 (IR No. 41771) and executed a deed of surrender dated 20 September 2000, which was registered on 5 December 2000 in consideration of the new grant IR 85088," the court papers said.
In October 2008, he transferred the land to Jewel Holdings Limited, registered as IR 85088/1, which then transferred the land to Megvel Cartons Limited, its associate company, in December 2009, registered as IR 85088/3 on 23 December 2009.
Consequently, he argues that the actions of the Commissioner of Lands and the Director of Surveys in issuing a letter of allotment to Diesel Care Limited on September 1, 1999 resulted in a violation of his rights to property.
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He alleges that the two state officials knew that the land had been registered to him since 15 October 1986 and that their actions violated the Constitution, which protects his rights to property and prohibits the arbitrary deprivation of property without compensation.
"Accordingly, the letter of allotment issued to Maji Safi Enterprises did not and could not better confer a legal and justiciable right," Mr Odero said in court papers.
"The entire resulting title was illegally issued and is inferior to the petitioner's title. The same applies to the decision and registration of the title based on the void allotment letter, which is now held by Diesel Care Limited," he adds.
Mr Odero claims that when he owned the property, the land was not available for allotment, arguing that where land has been allotted, the same land cannot be allotted again unless the first allotment is validly and lawfully cancelled.
"The land was never cancelled in any way by the respondents. As a result of the illegality and alleged fraud on the part of the Commissioner of Lands and the facilitation of the Director of Surveys, the property was allocated to a third party who in turn transferred it to Diesel Care Limited".
However, in documents filed in the Machakos Environment and Land Court in 2011, Diesel Care Limited claimed ownership of the property, saying it bought it from Miriam Mwikali Mulei and Robert Mulei Mutua of Maji Safi Agencies in September 1999 for the sum of Sh6 million and obtained a grant No.1504/11 (IR85400) registered on May 30, 2001.
In 2018, Justice Oscar Angote upheld the title of Diesel Care Limited and rejected that of Megvel. Aggrieved, Megvel appealed to the Court of Appeal against the judgement.
In February 2023, the Court of Appeal upheld the lower court's decision. However, in April, Megvel filed an instant petition in the Supreme Court challenging the reasoning, findings and conclusions of the Court of Appeal.
"We submitted all the documents to the court, but they were all ignored. The court even claimed that Odero didn't own the land, whereas documents from relevant government agencies confirm that Odero does own the land," said counsel James Oduol of TripleOKLaw LLP Advocates.
Megvel Cartons had approached the High Court seeking to restrain Diesel Care Limited from entering, trespassing or interfering with its possession of the land in Mavoko Township, Machakos County.
However, the application for an injunction was struck out by the High Court in April on the grounds that it lacked jurisdiction to entertain the matter as filed.
Mr Oduol, however, challenges why the court upheld Diesel Care's allotment number as valid without first determining whether the grant surrendered for change of use was legally and procedurally converted.
He argues that the land in question was not available for allocation because it was private property, yet Diesel Care presented a letter of allocation and a title deed to the court.
“A title deed does not hang in the air but must owe its origin to various documents. You don’t just apply for land allotment. It must be available, advertised and interest is shown. No court has explored all these,” he said.
Mr Oduol says documents from the Survey of Kenya show that Mr Odero surrendered the old grant on December 5, 2000, yet Diesel Care claims to have bought the suit property from Maji Safi Agencies in September 1999, when there was no valid and complete surrender of the suit property to make the land available for allocation to a third party.
“How does a judge come up with ridiculous findings that Odero never owned the property yet the Deed Plan in his title is the same one these other people are using?” posed Mr Oduol.
“A judge must decide a case on the basis of evidence. The judge abdicated his constitutional duty to trace the origin of the two titles. Whereas he accepts Wamaitha’s title as genuine, he does not say anything about the sale agreement and the transfer of how Odero was given the property,” he added.
