Thousands of Kiambu residents and commercial developers are staring at eviction from a 120-acre land owned by Kenyatta University.
This is after a court nullified titles issued 21 years ago on the strength of a directive issued by then President Daniel Moi.
After 19 years of fighting in court over ownership of the property in Kamae Kahawa, the university has received the court’s nod to evict the occupants and recover the land.
Justice Loice Komingoi, while issuing the eviction order in the dispute that started in 2002, declared the occupants of the land as trespassers.
Justice Komingoi rejected the occupants’ claim to the land under the statutory doctrine of adverse possession.
Among those who will be affected by the order are developers who bought plots and put up commercial buildings.
Evidence in court indicated there are storey buildings on the property, some rising up to five floors.
The judge said the developers could not claim upper hand in terms of ownership over those who sold them the plots.
The judge added that the said sellers had no valid title to any purported plot or any portion of the university land.
Other occupants claimed they were given their respective plots by the Kanu regime under President Jomo Kenyatta and Daniel Moi.
While dismissing the occupants’ claim to the land through adverse possession, the judge noted that a court order was issued in 2003 barring both the university and the claimants from undertaking development on the suit land.
Four residents, all defence witnesses, admitted in court that construction had been ongoing on as well as encroachment.
“The result is that the character of the suit property has drastically changed with both residential and commercial buildings erected. The said order was issued by consent and the defendants (the illegal occupants of the land) had knowledge of the said order,” said Justice Komingoi.
She further stated that a claim for adverse possession cannot be argued simultaneously with a claim to ownership as the two are mutually exclusive.
In their defence, the occupants of the land had argued that since they had lived there for more than 12 consecutive years, they should be declared the owners of their respective plots.
They had also claimed ownership of the land by virtue of allotment letters issued by the government of President Moi in 2000.
“Allowing a claim to both adverse possession and ownership in respect to the suit property would be tantamount to allowing the claimant to approbate and reprobate. A claim of adverse possession does not lie in respect of public or government land,” ruled the judge.
The squatters had claimed they were given the land by President Jomo Kenyatta in 1966 and 1967.
They later approached President Moi who agreed to let them settle on the land and directed that they be issued with letters of allotment. A surveyor went to the ground and set the boundaries.
A witness, Mr Kamau Wanjau, said residents of Kamae are now about 10,000. Another witness stated that in 2000, President Moi directed that the residents, known as Marengeta squatters, be added another 70 acres. The directive was made at a public rally in Korogocho, Nairobi, on November 22, 2000.
Then Nairobi provincial commissioner Cyrus Maina showed them the boundary, which is the current Northern Bypass road. A survey was done and letters of allotment processed.
But Justice Komingoi ruled that the said allotment letters issued courtesy of a directive by President Moi could not override a duly registered title.
“The university was registered as a lessee from the Government of Kenya of the university land on October 1, 1977 and a grant issued to that effect. The said purported letters of allotment were issued on July 29, 2002 in respect of plots purportedly on the university land while the aforesaid grant subsisted,” stated the judge.
She noted the letters of allotment did not identify the name of the county council under whose behalf they were issued and none made reference to Land Registration (LR) Number 11026/2 – the disputed land.
Part of the claimants’ evidence in court was a cutting of a Kenya Times newspaper report on President Moi’s directive on issuance of allotment letters.
However, the judge, after going through the article, said it appeared the President was referring to land near Kenyatta University and not the university land.
In any case, the judge went on, the land held by the university had already been allocated to it and it had a title deed.
Evidence adduced in court showed the property was not government land as it had already been alienated and allocated to the learning institution, hence it was not available for further alienation and allocation to squatters.
The disputed land measured 150 acres but in 1984 the institution donated 30.82 acres to 670 squatters. The Ministry of Lands then prepared a survey plan.
The institution of learning later fenced off its land to prevent further encroachment but the fence and the concrete posts were removed. It then decided to dig trenches. The trespassers erected permanent structures despite court orders issued in 2003 when the court battle began.
To put off the trespassers, the university also published caveat emptors in 2009 and another in 2014.
The institution said it intended to utilise the suit property to develop hostels to accommodate 10,000 students and construct a Doctor’s Plaza.
It also intended to construct living quarters for personnel working at the Kenyatta University Teaching Training and Referral Hospital (KUTRH).
The university stated that the interests of the illegal occupants of the land threatened the advancement of education by more than 70,000 students drawn from all over the country.
“Indeed, due regard ought to be given to the larger public interest to be served by the suit property over the interests of a few individuals,” said the judge in her judgment.
She observed that the university is ready to give out the 30.82 acres it donated in 1984 to accommodate the original 670 squatters.