Widow appeals decision to allow excavation of her land for construction of SGR

A widow who wants to stop officials of the Chinese company constructing the Nairobi-Naivasha Standard Gauge Railway (SGR) from invading her land has taken her case to the Court of Appeal.

Charity Mpano was dissatisfied with Lady Justice Christine Ochieng’s decision not to punish the officials of the China Communications Construction Company, whom she said had invaded her 60-acre land to excavate materials for the construction despite a court order stopping the firm.

In her memorandum filed at the Court of Appeal, Ms Mpano argued that the judge made a mistake in ruling that she only has partial jurisdiction to hear the land dispute.

The battle between the widow and the Chinese company started in 2016 when it started excavating the land in Kisamis, Kajiado County, for materials to construct the SGR.

She went to court and got orders stopping the excavation, but the company went on, prompting her to file a contempt of court case.

Lady Justice Ochieng, however, dismissed the contempt case, ruling that she did not have jurisdiction to punish the company. She also ruled that the court orders were not properly served on the company officials to warrant any punishment.

But through lawyer Kariuki Muigua, Mpano argued that the court orders were properly served and that the company had even acknowledged receipt.

“The judge made a mistake when she held that the company’s directors were not served with the order stopping excavation when they had admitted they were aware of the injunction but wilfully chose to disobey it,” said Muigua.

Mpano is also appealing against the judge’s decision to disregard evidence of the company disobeying the court orders and an expert report commissioned by the Kenya Railways Corporation which recommended that the excavation should stop due to health and environmental concerns.

According to her lawyer, the judge made a site visit to the 60-acre land and confirmed the illegal activities but failed to use this in her decision to dismiss the contempt case.

Muigua further accused the judge of being biased against the widow, arguing that she allowed an unidentified person to be part of the site visit and only admitting a report prepared by the Chinese company while denying her an opportunity to also table her report.

According to the lawyer, the judge also introduced extraneous evidence to favour the Chinese company when the evidence was not adduced by any of the parties involved in the dispute.

Mpano wants the Court of Appeal to set aside Justice Ochieng’s decision and find that the company’s directors – Liu Qitao, Fu Jinyuan, Liu Wensheng, and Li Qiang – are in contempt of court and be jailed for six months. She also wants the court to permanently stop the company from illegally excavating her land.

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