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Four families to get billions for land taken away by State 40 years ago

By Geoffrey Mosoku | October 22nd 2019
Diani Mall, formerly Nakumatt Diani, in Kwale County. (Kelvin Karani, Standard)

Four families from Kwale County whose land was snatched by the State four decades ago will be paid billions of shillings in compensation.

This is after the Court of Appeal sitting in Mombasa rejected an appeal by the Attorney General to overturn a landmark award of Sh10 billion to the families for the land situated in Diani. Instead, the appellate court directed that the case be placed before the High Court for reassessment of the award for compulsory acquisition of the land measuring 328.5 acres.

The land harbours Diani Beach commercial complex in Ukunda and several other multi-million property – beach hotels, a shopping complex, hospitals and residential homes.

These include Kaskazi Hotel, Leopard Beach Hotel, Leisure Lodge, Diani Reef Beach Resort, Southern Palms Hotel, Swahili Beach Resort, Diani Shopping Complex, former Nakumatt Diani mall, Diani Beach Hospital and Diani Dispensary.

The four families of Afzalkhan Rahimkhan, Daniel Mwangi, Pauline Mwongela and Sayeed Mushtaq Hussain bought the property from Reaby Eleanor Vere Wailes in March 1978 at Sh140,000.

However, the State cancelled their title and transferred it to a private firm, which was linked to powerful individuals in the Jomo Kenyatta government, sparking the 40-year battle. On July 5, 2012, the administrators of the Estate of Afzalkhan Rahimkhan (widow Begum Rahimkhan and son Rahimkhan) and three others sued the Chief Lands Registrar, Attorney General and Commissioner of Lands.

Represented by Asli Osman of Ahmednasir, Abdikadir & Company Advocates, the families won the case and were awarded Sh9.88 billion in June, 2017.

State infringed on rights

Justice Eric Ogola found that the Government had infringed on their constitutional right to property, hence entitling them to compensation. He said the State had illegally deprived them of their land and awarded an extra Sh60 million as damages for loss of use of the property, physical, mental and psychological torture.

However, Appeal Judges Alnasir Vishiram, Gatembu Kairu and Agnes Murgor partially overturned the ruling in regard to the Sh60 million award for damages and directed the lower court to reassess the compensation amount following an appeal lodged by the AG. The appellate judges ruled that the Chief Lands Registrar had no authority or mandate to cancel the title, while reaffirming the High Court’s determination that the families had been deprived of their land illegally and thus deserved compensation.

“We respectfully find that the learned judge erred in awarding the damages of Sh60 million. It is not in dispute that the respondents were deprived of the suit property and in our view, such deprivation, in the circumstances of this case, requires to be vindicated by an award of compensation for the compulsory acquisition,” the judges said.

They faulted Justice Ogola for only relying on a valuation report prepared by Edwin Muturi Mbugua, a registration officer, who had been hired by the families, to award the Sh9.9 billion.

“We, therefore, substitute the same with an order on the matter to be placed before any High Court judge other than Ogola, for reassessment of the compensation for compulsory acquisition of the suit property,” the three ruled last August 21.

The file was placed before Justice Dora Chepkwony for mention on October 14, but counsel for the petitioners and AG could not agree on how to reassess the award.

The court directed the matter to be mentioned again on November 18, when the judge will give direction. The court has three options: Allow a valuer agreed jointly by the parties, appoint its own or direct the National Land Commission to undertake the reassessment of the amount to be awarded.

Before the transfer of the property, Mrs Wailes applied to the Kwale Land Control Board for the issuance of consent to transfer, which was subsequently issued on March 22, 1978 vide Minute 327/78. However, after registering the property in the names of the petitioners, the Government, through the Director of Agriculture, vide a letter dated April 28, 1978, barred them from the land allegedly because another “member of the public was an interested party” to the purchase of the property. “The alleged member of the public was one Mr Kahara, who the petitioners allege wanted to purchase the property together with his other unknown friends despite the fact that it had already been purchased by the petitioners,” the ruling states.

In another letter dated May 17, 1978, the Director of Agriculture wrote to the petitioners directing that the documents relating to the property and its registration be immediately released to Kahara for processing in the Land Control Board. While this was going on, Kasika Developers Limited, which was registered by what the petitioners allege to be powerful Government employees, presented its application for consent to transfer the property from Mrs Wiles in their favour.

Mr Kahara was a director in the company and a “nominee of top Government officials” as alleged by the petitioners.
“Chief Land Registrar or his officers issued another Certificate of Title to Kasika, meaning two Certificates of Title had been issued in relation to the same property, and this was confirmed by the then AG Charles Njonjo in his letter dated October 30, 1979.”

On March 19, 1979, the Chief Lands Registrar directed the Land Registrar Mombasa to cancel the petitioners’ title.

The State had argued in court that this was simply a case of a failed private transaction, which pitted the respondents against Kahara.

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