A view of the settlement on the Waitiki land in Likoni. The land has been at the centre of a protracted court battle. [PHOTO: MAARUFU MOHAMED/STANDARD]

Do investors enjoy private property rights enshrined in the Constitution? This is a question few can answer conclusively; yet Article 40 of the Constitution provides for protection of the right to legally-acquired property.

A property owner should only be deprived of his/her investment if acquired illegally, irregularly or for a public purpose after compensation in line with the law.

However, even with constitutional provisions protecting the right to private property, reality on the ground points in a different direction.

Not even court orders to enforce ownership rights are respected as real estate continues to stamp its authority as one of the major drivers of the economy.

Interestingly, even the Judiciary, which has a constitutional mandate to enforce property rights, is also suffering at the mercy of rampant land grabbers.

Judiciary affected

The Chief Registrar of the Judiciary Ann Amadi recently told the National Assembly Justice Affairs Committee that land meant for the expansion of the Supreme Court had been grabbed by a private developer.

According to Amadi, the Judiciary was still in possession of the ownership documents for the prime land at the centre of Nairobi, but a new title deed had been issued to another owner.

The mysterious change of ownership is the latest in a series of scandals targeting land owned by Government and public institutions in the city, but private investors are also victims.

There are several reported cases of families evicted from their land by hired goons as armed police officers keep vigil. Take the case of the 940-acre parcel of land (Waitiki Farm) legally owned by Evanson Kamau Waitiki at the Coast.

Waitiki bought the farm from Gulb Wood Company over 40 years ago and started farming on it before trespassers struck and evicted him during the infamous Likoni clashes in 1999.

Waitiki embarked on a protracted court battle with the State over his property until the High Court granted him orders 14 years ago.

The High Court ordered the Commissioner of Police to move onto the farm and evict, arrest, investigate and prosecute trespassers who destroyed and damaged property. The High Court issued the orders after finding that a group of people claiming, without any proof, to be local inhabitants, invaded the private land, expelled the owner, vandalised his property, occupied the land by force and started benefitting from it.

The court observed that the applicants reported the actions of the invaders to the district officer in Likoni, OCPD Mombasa, OCS Likoni, the provincial and district commissioners and  local MP’s, but no action was taken.

Sued government

A similar case is Roshanali Karmali Khimji Pradhan vs The Attorney General.

The plaintiff was the owner of Ziwani Farm who sued the Government for breach of its statutory duty and negligence which resulted in the destruction of his farm.

He claimed damages after raiders invaded his property between May 15 and August 8, 1997. He reported the matter to the security authorities and asked them to take action.

However, no action was taken by security agents leading to wanton destruction of his property. Senior police officers gave evidence for the Government, which opposed his claim. They admitted that the Government was in a position to crush the tribal clashes but did not do so. He was awarded damages of Sh17.9 million.

— The writer is an advocate of the High Court

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