Cement firm wants MPs and State to keep off its property

Mombasa Cement Limited managing director Hasmukh Patel. [File, Standard]

A Mombasa-based cement company has asked a court to restrain the government from nullifying title deeds to its two parcels of land in Kilifi County over claims they were acquired illegally.

Mombasa Cement Limited (MCL) filed a suit before the High Court after a parliamentary committee overruled the National Land Commission (NLC) that validated the process used to acquire the properties from Vipingo Estate Limited in March 2005.   

MCL bought the land at over Sh68 million. However, some residents and local politicians claimed the cement firm ought to have surrendered the land to the community.

NLC investigated the matter before giving the process MCL used to acquire the land a clean bill of health.

MCL also wants the court to determine whether Parliament has jurisdiction to investigate a matter that falls under an independent commission. 

The firm wants the State stopped from implementing the committee's report that termed the process illegal.

NLC had ruled in favour of the cement maker.

The Ministry of Lands, the Attorney General and the Speaker of the National Assembly are the defendants.

MCL’s legal team is seeking to block the State from overturning NLC’s findings and implementing a recommendation by the National Assembly’s Land Committee that called for the nullification of the title deeds.

On Friday, MCL lawyer Cyprian Onyony told Justice Sila Munyanyo that his client acquired the land after due process. He said NLC also dispensed subsequent challenges to the acquisition and transfer after listening to all interested parties, including residents.

In an affidavit, the cement company's managing director Hasmukh Patel insists the committee's decision cannot supersede NLC's.

“NLC's investigations showed transfer of the land from Vipingo to the petitioner was legal,” said Patel.

NLC  argued that under the National Land Commission Act and the constitution, a committee of Parliament has no jurisdiction to investigate or overturn a decision on a matter that is the function of the commission.

“Parliamentary committees acting under Article 124 of the Constitution and Standing Order 216 (5) have no jurisdiction whatsoever to inquire into, investigate, report on any matter relating to the mandate or which is the mandate of the Commission,” NLC said.

It added: "If the State or its organs were dissatisfied with the NLC’s findings, the proper forum to review it would have been the High Court." 

NLC lawyer Simon Mbuthia said by investigating the titles after its verdict, the committee purported to act as an appeals court.

“Indeed my client had the jurisdiction under the constitution and National Land Commission Act to review all grants and disposition to the suit land and render a determination,” he said.

NLC cited several Supreme Court rulings, including one in 2015 that showed Parliament’s oversight role is not unlimited, and that the House must not intrude into functions of independent commissions.

After the committee's recommendation, the Lands ministry wrote to NLC calling for nullification of the title deeds. The court will rule on the matter on April 25. National Assembly lawyer Mbarak Ahmed said MPs have powers to investigate the matter and determine if the process was was legal.

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