State loses bid to acquire Athi River land for affordable housing

A court has blocked the government’s plan to acquire 4,272 acres of land in Athi River to build affordable housing under its Big Four agenda.

Justice Loice Komingoi’s decision means officials must look for alternative land for the project, which was to cost over Sh350 billion from private investors, including Chinese and Qataris.

Justice Komingoi of the Environment and Land Court said officials did not follow the law in seeking to compulsorily acquire the land, which belongs to East Africa Portland Cement Company (EAPCC).

The judge agreed with trade union association Cotu, represented by lawyer Donald Kipkorir, that the compulsory acquisition infringes the investments and economic rights of workers, who hold a stake in EAPCC.

The judge issued a conservatory order “maintaining the status quo and directing the respondents jointly and or severally, their servants or other government or statutory bodies from interfering with the 2nd Interested Party’s (EAPCC) quiet possession and ownership of the property”.

Cotu sued last year, arguing that pension scheme NSSF is the largest shareholder of EAPCC and stands to lose its investment if the land is taken over by the government.

Surrender letter

The workers’ body moved to court after the principal secretary in the Ministry of Lands wrote a letter on August 13, 2019 to EAPCC’s acting managing director, asking the cement maker to surrender the land immediately.

Mr Kipkorir argued that in the affordable housing delivery framework, the government should seek several approvals from all stakeholders in acquiring private or public land. He argued that the letter represented high-handed subversion of the guidelines and principles of compulsory land acquisition.

“As a key stakeholder with massive interest in EAPCC, NSSF keeps all the audited records of accounts on the financials of the company in terms of investments made on behalf of Kenyans. The number of shares that NSSF holds at EAPCC as at June 2018 had an approximate value of more than Sh100 million,” he said.

Subject to forfeiture

The government said the parcel was public land that was set aside for agricultural use but EAPCC used it for mining and was therefore subject to forfeiture.

The Attorney General submitted that “the mining purpose to which the land was put has been exhausted and since the land is also not being used for agricultural purposes, it has been or is threatened with invasion of squatters and unlawful and unplanned and uncontrolled informal settlements”.

The court heard that the government identified the land as the available option for the proposed affordable housing project and industrial and other future development plans on Mombasa Road.

The government also declared in 2008 the corridor along Mombasa Road from Athi River to Mombasa as a Special Economic Zone.

Had the deal gone through, the manufacturer of the Blue Triangle brand of cement would have been forced to cede 4,272 acres for free because the company had failed to put it to agricultural use in line with allocation terms inked in 1960.

In an affidavit, Cotu Secretary-General Francis Atwoli said that while he noted the policy frameworks in the implementation of the government’s Big Four agenda, especially on affordable housing, the government had subverted laid-down procedures and guidelines.

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