State loses battle for land meant for city road reserve

A section of the disbuted land in Runda Mimosa. [ Wilberforce Okwiri, Standard]

Failure by the Government to complete compulsory acquisition of land earmarked for the Northern Bypass road reserve has cost the taxpayer millions of shillings.

The Commissioner of Lands is said to have failed to conduct a final survey after compensating original property owners in the 1970s or indicate in the register that a 20-metre stretch of the properties was public land.

The commissioner also failed to recall the mother titles for purposes of indicating the easement and recording in the land register.

The Court of Appeal has now ruled that the current 29 property owners are innocent purchasers who had relied on contents at the land registry records to buy the parcels along the 12-kilometre road.

“It would be contrary to the intent of law and wholly unnecessary for a party seeking to acquire interest in land to go beyond the register to establish ownership and the history of the past transactions involving that land,” reads part of the judgment.

By earmarking the properties for demolition in 2010, the appellate court said the owners’ rights to property guaranteed by the constitution were threatened with violation.

Some of the current property owners are former Kitui Senator David Musila, Ms Jane Waikenda, Ibrahim Thiaw, Aska Nyangara, Ian Fernandes, Augustine Aghaulor, Leonard Angaine, David Thige, Jonathan Quail and Ann Ndumu.

The Government planned to ease traffic within the city and developed an interest on several properties along the Northern Bypass. The road was to link Ruaka on Limuru Road to Kiambu Road through Runda estate.

Records tabled in court show the width of the road in Runda Mimosa area was to be 60 metres and not 80 metres as claimed by the government when the 29 homes were marked for demolition.

The matter traces its roots to 1970 when a gazette notice was published over Runda Mimosa land, indicating that its three original owners were Edith Cockburn, Estav Limited and another.

However, the mother titles belonging to the original owners were not recalled by the Commissioner of Lands for purposes of indicating the easement. It also emerged that in 1972, GA Hollis, a government valuer, advised that it was imperative to conduct a final survey of the acquired land, observing that the road acquisition plans the government intended to use were not easy to comprehend. Due to numerous amendments from time to time, the original plans were submitted to the lands department.

Evidence tabled in court showed survey plans for the road conducted by John Burrows & Partners were not authenticated and signed by the Director of Surveys and had no seal of the Survey of Kenya.

In their ruling, Appellate judges William Ouko, Fatuma Sichale and Otieno Odek said there was no proof that the government erected any form of a mark on the suit property to identify the acquired portion.

“The conclusion that one will inevitably reach from all these is that the critical steps precedent to compulsory acquisition of the properties in question were not strictly followed or completed,” the court ruled.

The land was later sold to the 29 residents whose homes were earmarked for demolition in 2010.

Cycad Limited said it had invested Sh600 million in the construction of 19 residential houses and sold some of them to third parties. Others had spent Sh35 million each in putting up their homes after getting approvals from government institutions like the National Environment Management Authority (Nema) and the then City Council of Nairobi.

However, before purchasing the properties, the home owners said they conducted due diligence and there was no record at the lands office, showing that part of the properties were occupying the road reserve. The residents argued that the width of the road as per records showed 60 metres and not 80 as claimed by the Kenya Urban Roads Authority (Kura), the Ministry of Roads and the Ministry of Lands.