The High Court in Mombasa has restored a prime beach property acquired by the Aga Khan family to a company that had lost it to powerful politicians and businessmen.
The 25-acre property in Diani, Kwale, has had a controversial history. According to court records, Prince Sadruddin Aga Khan acquired it in 1974 and was awarded a title deed in 1976.
On September 18, 1992 the Prince Sadruddin sold it to Dignified Holdings - the petitioner - for Sh11 million, and the firm later renewed the lease for 50 years in 2008.
Dignified Holdings claims it discovered it had lost ownership in 2010 when the Ethics and Anti-Corruption Commission (EACC) demanded an explanation on the property's legal status.
The EACC informed the company that it was investigating fraudulent dealings surrounding the property.
Dignified Holdings says it went to court in 2014 after discovering the property had been allocated a new number, subdivided and allocated to other people.
In its suit, the company sued the Attorney General, Said Ndege, Raia Makhungu, Omar Zonga, Said Kabang, Hilmi Ahmed, Said Mwinyiki Tomas, Athuman Said Rimo, Ali Nyong, Yasmin Dushman Shaban, David Kandie, Silas Kiptui Kipchilat and Kennedy Begi Onkoba.
It was alleged at the time that residents had laid ancestral claims to the land. This after they questioned how Sadruddin acquired the property, saying it had been grabbed from the community by the British.
Respondents in the suit, including former Lungalunga MP Omar Zonga, claimed they were allocated the land in 1990 and dismissed the petitioner's claims over it.
The respondents further submitted that there was no evidence to show Sadruddin had legally, owned the land he purported to sell to Dignified Holdings hence any purported lease held by the petitioner was null and void.
The government, which was a defendant in the suit, defended the respondents saying they were legally allocated the land after it was compulsorily acquired for lying idle.
The government did not explain Sadruddin's acquisition in 1974 or acknowledge Dignified Holdings' claim to the property.
Instead, the State maintained that the title deed had ceased to exist in 1974 and the company was to blame for failing to do due diligence when buying the land.
Following the new allocations, several title deeds were issued to Zonga and others. In 2012, Zonga, a former employee of the Lands ministry, was charged with land fraud and acquitted.
On Friday, Justice Anne Omolo declared that Zonga and 11 others were illegally allocated the land in question by the National Land Commission.
“A declaration be and is hereby issued that the certificates of title issued to the defendants hereby for Kwale/Diani beach block/151 are unlawful, illegal null and void ...(and are)... hereby cancelled,” said Justice Omolo.
The judge also declared that the allotment letters issued to the defendants were illegal and cancelled them with immediate effect.
Justice Omolo noted that during the hearing, the company produced documents showing that Sadruddin was issued with a title deed for the land on October 8, 1976.
The judge found that Sadruddin later sold the land to Dignified Holdings on September 18, 1992.
Before the company bought the land, it was trading as Leisure Lodge Club.
The company fenced the property and employed a caretaker. In March 2007, the firm applied for extension of the land lease that had expired, which was granted the following year.