Court dismisses contempt case against tycoon Suleiman Shahbal

Buxton Point Apartments in Mombasa County that stand on a disputed piece of land claimed by tycoon Abdullahi Gele. [Joackim Bwana, Standard] 

The Court of Appeal has dismissed an application seeking to have Mombasa tycoon Suleiman Shahbal jailed over contempt of court in a multi-billion shilling land dispute at Buxton Point Apartments.

Businessman Abdullahi Gele accused Shahbal, Buxton Point Apartment, Roton Construction, Mombasa County, Chief Lands Registrar Mombasa Couty and Chief Officer, Land, Housing and Physical Planning of failing to stop construction of the said affordable housing project on his land hosting Buxton Petrol Station despite orders from Justice Lucas Naikuni.

Gele also applied to have Mining Cabinet Secretary Hassan Joho who was serving as Mombasa County Governor, Chief Officer Department of Lands, Housing and Physical Planning, Rose Munupe, Shahbal, Akram Badawy, Yasin Noorr, Omar Karaceli, Ahmed Karaceli and Martin Kariuki jailed for failing to stop the said construction.

However, Justice Naikuni declined to cite Joho for court contempt because he was not being party in the suit.

According to Gele, on October 27 2021, Justice Naikuni stopped the construction of the multi-billion project pending hearing and determination of the suit. He further extended the orders on December 1, 2021.

He said that Justice Naikuni issued another conservatory order dated May 9, 2022, stopping any further construction until the said petition by Gele is heard and determined.

Gele was also allowed access to remove his fuel tanks and pumps from the disputed land.

In his ruling dated March 27, 2023, Justice Naikuni summoned Shabaal, and the directors of Roton Construction to appear before him and explain their failure to comply with the orders and directed for site visit.

However, Shahbal filed an appeal before Justices Agnes Murgor, Kibaya Laibuta and Macharia Ngenye challenging the High Court summons over contempt for failure to stop the construction of the multi-billion affordable housing project in Mombasa County.

In dismissing the contempt summons, Justice Murgor said that the High Court failed to establish if there was indeed ongoing construction at the suit premises before citing Shabaal, Buxton Point Apartments, Roton Construction Company and Mombasa County officials for contempt and summoning them.

The judges said that it is not clear how Shahbal, Buxton Point Apartment and Roton Construction defied Justice Titus Naikuni’s status quo orders dated October 27, 2021, and December 1, 2021, stopping the construction of the affordable housing project in the disputed land.

The appellate court said that Justice Naikuni reached a wrong conclusion and faulted the summons issued on Shahbal, Buxton Point Apartment, Roton Construction and Mombasa County officials.

“For our part, the record does not lead us to conclude that contempt was established. We say this because the pleadings and evidence were distinctly vague and inconclusive. There was

nothing that pointed with any level of certainty to defiance of the status quo orders by the Appellants (Shahbal, Buxton Point Apartments and Roton Construction) and Mombasa County, Chief Lands Registrar and Chief Officer, Land, Housing and Physical Planning (the 2nd to 4t respondents),” said Justice Murgor.

The appellate judges said that Justice Naikui considered extraneous matters that were not before him and, after so doing, wrongly concluded that Shahbal and the other cited by Gele knew the unrelated order that had no bearing on the matter before him.

In their defense, Buxton Point Director Badawy said that the suit plot did not exist after it was cancelled together with other allegedly irregular leases and consolidated into a parcel where the said construction was ongoing.

Badawy said that all development activities were being undertaken on the said land pursuant to a lawful lease and joint venture arrangement for affordable housing.

He said construction on the suit parcel commenced before the issuance of the status quo orders and that Gele had not brought a land surveyor’s report demonstrating that the developments were taking place on his property.

He said they cannot be held for contempt yet the courts had not determined if the construction was being undertaken on Gele’s property.

Badawy also cited the Chief Officer, Lands Housing and Physical Planning Mombasa County, Mombasa County and the Chief Land Registrar.