Government has put on notice those who have encroached land for infrastructure development, writes HAROLD AYODO
The Government has put on notice investors who have allegedly encroached parts of a 23-kilometre bypass meant to link Kitengela and Ongata Rongai.
According to State officials, the encroachment has derailed the construction of the bypass, even after the Treasury allocated Sh323 million for construction. The road is meant to ease transportation on the Namanga-Magadi Road by linking the two satellite towns.
Kajiado County Commissioner Arthur Osiya was recently reported in sections of the mainstream media attributing the delay to properties built along the road. The buildings include Kitengela Police Station and several high-rise commercial and residential buildings.
“We appeal to those who acquired land reserved for the road to cooperate during the exercise due to the importance of the road,” Osiya said.
A section of investors and residents whose buildings and homes have been earmarked for demolition have received notices to vacate.
Recently, Kajiado County Governor David Nkedianyi requested investors who allegedly acquired public utility land irregularly to prepare to leave. The public property includes school compounds, sewer lines, markets and forests.
This is just but one of the many cases of impending evictions and demolitions of property to give way for the putting up of infrastructure.
Last year, Kenya Railways issued a public notice to more than 50,000 people living along railway lines. And two years ago, the Government issued a notice to thousands of families living in riparian areas. It targeted demolition of 16,046 structures built on riverbanks and move more than 130,000 people. Sh1.4 billion would be used to relocate them.
Even residents of slums have been perpetual victims of evictions and demolitions to give way for real estate or infrastructural developments.
However, High Court judge Lady Justice Mumbi Ngugi, recently set a precedent when she directed that more than 15,000 residents of Mitumba Slums, next to Wilson Airport, be resettled. She directed the Kenya Airports Authority, the Attorney-General and Commissioner of Lands — the three respondents in the Mitumba Village petition — to resettle the affected.
The respondents were given a period not exceeding 60 days to work out a policy on the resettlement programme for the residents whom she termed a ‘marginalised group’.
“The Government failed to address the plight of the slum dwellers before it kicked them out... it is clear the demolition was a case of violation of human rights where a whole community was deprived of its residence and business premises despite a stay order,” Lady Justice Mumbi ordered.
The judge said there was also a court order stopping the demolitions at Mitumba Slums when State bulldozers flattened the structures. “The Government must now ensure the relief of the affected families since the demolition was irregular and illegal,” she said, directing the State to resettle residents of the informal settlement pending their compensation.
Mumbi said the forceful eviction without re-allocation was illegal, and that it went against the Constitution and affected access to education, water and health care amongst other basic human needs.
“Article 10 of the Constitution sets out the national values and principles of governance that bind all State officers — equity, inclusiveness, non-discrimination, good governance and accountability. In this case, the State is duty-bound to safeguard the interests of minorities as it was a signatory to the protection of social rights and its agents,” Justice Mumbi directed.
Back to infrastructural developments, some private developers often cry foul when the State shifts to top gear efforts to improve infrastructure. Take the case of the construction of the Southern bypass in Nairobi launched by retired President Kibaki.
The 30-kilometre dual carriageway estimated at Sh17 billion is aimed at reducing traffic congestion at the city centre. It should branch from Mombasa Road near Ole Sereni Hotel and pass on the edge of Nairobi National Park, Langata’s Southern estate, Ngong’ Road, Dagoretti, Giatara and Thogoto in Kiambu, and join the Nairobi-Nakuru highway. There will be no round-abouts, but at least six interchanges.
In Mombasa, about 60 metres in width of the Makupa Causeway at Kibarani will be repossessed to expand the congested highway. As affected property owners cry foul, the State can compensate only genuine owners whose parcels of land have been compulsorily acquired for development purposes. Such owners must be fully and adequately compensated after a valuation is done.
Landowners who feel that the compensation is inadequate can move to the High Court to demand full compensation. The Government had set aside Sh3.7 billion to purchase land for the Southern bypass in Nairobi and compensate the affected owners.
The bill of rights under Article 40 of the Constitution provides for protection of right to private property. Constitutionally, private land is that held under freehold and has a title deed, whereas leasehold has a lease. The rights, however, will not apply to owners who unlawfully acquired the repossessed or demolished property.
Provisions may also be made for compensation to be paid to occupants in good faith and may not have title deeds. Property owners can also go to court to stop the State from demolishing their buildings to improve infrastructure.
A good example is the case of 29 residents of Runda estate, currently in court to stop demolitions to pave way for the 21-kilometre Northern bypass.