A deal brokered by National Lands Commission (NLC) to have Deputy President William Ruto pay for the controversial land on which Weston Hotel sits has run into headwinds.
The Kenya Civil Aviation Authority (KCAA) has moved to court seeking to repossess the contentious land.
NLC found that the four-star hotel had been built on grabbed land belonging to KCAA and ordered that Ruto should negotiate for compensation.
But in a new twist to the long running saga, KCAA has now moved to the Lands and Environment Court.
The suit, filed by lawyers James Orengo and Otiende Amollo, reads that NLC lacked powers to order KCAA to negotiate with the DP for compensation.
According to court papers exclusively seen by the Saturday Standard, KCAA said its only desire was to get back its land and not to be paid any money.
“The first respondent’s (NLC) determination further is irrational and irregular as no party pleaded for compensation. The final order also fails to account for the fixtures on the land, making the order ambiguous and absurd and incapable of implementation,” argue KCAA lawyers.
“Similarly, the determination is irrational because it deliberately turned a blind eye to the corrupt dealings of the second (Weston Hotel), third (Priority Limited) and fourth (Monene Investments Limited) respondents instead of upholding the petitioner legitimate expectation to enforcement of its property rights, thereby setting a bad precedent that wrongfully elevates land grabbing by private entities beyond legal reproach.”
Justice Benard Eboso ordered that the Weston land should not be used as security and should not be transferred to any other party.
He also barred NLC from evaluating the land in a bid to compensate KCAA.
“In the interim period, a conservatory order preserving the status quo and suit property be and is hereby granted restraining and prohibiting the first respondent from undertaking the valuation or taking any other decision, step, action or measure towards implementation and or enforcements of the determination of the NLC dated January 2019,” ruled Justice Eboso.
In the case, KCAA Director General Gilbert Kibe said that the parcel Weston sits on was public land intended for use by the Directorate of Civil Aviation (DCA) in ensuring air navigation control and safety throughout Kenya.
He claimed that DCA actively occupied and utilised the land by installing sensitive air navigation equipment and its central stores holding spare parts. It also had advanced plans to build its headquarters to serve as the base of KCAA.
According to Mr Kibe, Priority and Monene Investments procured registration as owners of the same land through illegality, fraud and corruption, and forcibly evicted the DCA and its employees from the said land.
The court heard that the two firms forcibly removed the DCA’s costly air navigation equipment and spares and dumped them at sites in Industrial Area and Athi River, causing their degradation from harsh exposure to the elements. He said Weston was built in full knowledge that the land had been grabbed.
The suit papers also said the hotel was built without proper development approvals.
“In furtherance to the fraud, Weston, despite full knowledge of the KCAA’s lawful claim, procured registration of the transfer in its favour and began rapid construction of the current development without bothering to seek or obtain development approvals from relevant state regulatory agencies, including KCAA,” said Captain Kibe.
Captain Kibe accused NLC of attempting to whitewash the illegality it suffered by ordering that it must accept compensation.
He said KCAA specifically sought restitution of the land.
The court heard that NLC ignored its own finding that the parcel was adversely mentioned in the Ndung’u Report of 2004. The report specifically identified KCAA’s unchallenged ownership over the land.
“Any due diligence conducted by a bona fide party in 2007 when the transfer was done would have raised red flags that the land belonged to the Petitioner. Therefore, Weston was in fact aware, or by reasonable diligence, would have discovered the KCAA owned the land. It cannot therefore allege that its transaction was bonafide,” he said.
It was also claimed that NLC ignored clear evidence that “Weston recklessly continued with the purchase and rushed construction without obtaining KCAA’s approval as required by Regulation 65 of the Civil Aviation (Aerodromes) Regulations”.
Weston, the court heard, further failed to comply with a notice to stop construction in a bid to secure air navigation safety. The case will be heard on July 4.
[Roselyne Obala, Geofrey Mosoku and Kamau Muthoni]
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