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National Land Commission sued over Sh24b dam land

By Kamau Maichuhie | November 13th 2018
Human rights activist Okiya Omtatah moved to court on behalf of the residents. The dam, to be built on 600 acres, is being funded by Kenya and China. [File, Standard]

The dispute over compensation for land the Government wants to use to construct the Sh24 billion Karemenu II dam in Gatundu North has gone to court.

Human rights activist Okiya Omtatah has moved to court, on behalf of the residents, seeking to have a decision by the National Land Commission (NLC) to revoke compensation awards reversed.

In a Kenya Gazette notice dated November 1, then NLC acting chairperson Abigael Mbagaya announced that the commission had cancelled the compensation awards due to anomalies.

Ms Mbagaya said there were errors and discrepancies in computation of the amounts.

In the suit filed before the High Court in Nairobi,  NLC chairman Muhammad Swazuri, Ms Mbagaya and the commission are named as respondents.

Mr Omtatah has accused Swazuri of abdicating his duties by allowing the acting chairperson to usurp and appropriate his powers and functions.

He accuses Mbagaya of making unilateral decisions and purporting to issue official communication on behalf of the commission.

Omtatah argues the acting chairperson had no capacity, in law, to issue gazette notices on behalf of the commission.

“There has never been and there is no vacancy in the office of the chairperson of the commission currently being held by Swaruri. Under the constitution, the office of the acting chairperson does not exist,” he says in his petition.

He is seeking to have the court declare the two gazette notices numbers 11370 and 11371 dated November 1, 2018 unconstitutional and therefore null and void.

Mr Omtatah also wants the court to declare ‘capture by the acting chairperson of the powers of the suspended chairman’ as unlawful.

He is also seeking to have the court declare Swazuri as the bona-fide chairperson of the commission who is the only one vested with the powers to issue gazette notices on it’s behalf.

Omtatah wants the court to declare that the office of acting chairperson does not exist in law.

In the suit, Omtatah says the awards that Ms Mbagaya was purporting to unilaterally revoke were given based on the valuation done by NLC on the parameters given by the acquiring ministry.

“The decision to revoke the awards without affording affected parties a chance to be heard before the drastic action was taken is a nullity as it violates the constitution,” reads the petition in part.

He argues the revocation is not based on any law, policy or administrative directive, adding there was no meeting of the Land Acquisition Committee of NLC to determine that the awards be revoked.

“NLC acting chairperson has power in law to do only those things which are authorised by the Constitution and anything not allowed is therefore invalid, null and void,” he says.

Omtatah says it is not acceptable that such drastic action affecting the livelihoods of poor peasants is taken without consulting them.

Lady Justice Winfrida Okwany certified the application as urgent and ordered that the suit papers be served to all the respondents who will in turn file their response within seven days.

According to NLC, over 2,000 families will be affected by the dam. The contract for the construction was signed in May 2017.

The case will be mentioned on November 20.

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